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62 d Congress 
2d Session 


SENATE 


Document 
No. 873 


ALIEN AND SEDITION 

LAWS 

DEBATES IN THE 


HOUSE OF DELEGATES 

OF VIRGINIA 


IN DECEMBER, 1798, ON RESOLUTIONS BEFORE THE 

HOUSE ON THE ACTS OF CONGRESS CALLED 

THE ALIEN AND SEDITION LAWS 

* 


t 

1 

i 


PRESENTED BY MR. BAILEY 

July 6,, 1912.—Ordered to be printed 


WASHINGTON 

GOVERNMENT PRINTING OPPIOE 

1912 









62d Congress 1 
2d Session J 


SENATE 


j Document 
{ No. 873 


alien and sedition laws 


DEBATES IN THE 

HOUSE OF DELEGATES 

OF VIRGINIA 

tl 

IN DECEMBER, 1798, ON RESOLUTIONS BEFORE THE 
HOUSE ON THE ACTS OF CONGRESS CALLED 
THE ALIEN AND SEDITION LAWS 



PRESENTED BY MR. BAILEY 
July 6, 1912.—Ordered to be printed 


WASHINGTON 

GOVERNMENT PRINTING OFFICE 
1912 
























n m % 

fm 27 ni? 


* 



ALIEN AND SEDITION LAWS. 






To the public: 

The following debates in the Legislature of Virginia emanated 
from that great struggle which so long agitated the politicians of 
the United States. The two parties were perhaps less divided about 
our foreign relations than about the internal measures of the ad¬ 
ministration. Among these measures, the alien and sedition laws 
were the most prominent and the most obnoxious. No sooner were 
they passed than the Nation was thrown into a flame. They were 
defended by the one party on account of their alleged expediency. 
They were attacked by the Republican Party, in the strongest man¬ 
ner, as not only uncalled for by the circumstances of the country, 
as not only calculated to abridge the hospitalities due to the perse¬ 
cuted foreigner and to trench upon the liberties of our people and 
the independence of the press, but as sweeping down the barriers 
which separated the powers of the States and of the General Gov¬ 
ernment and violating the most sacred principles of the Federal 
Constitution. The political views of the authors of those laws were 
keenly attacked, and their tendency to enlarge the jurisdiction of 
the United States at the expense of the rights of the States and of 
the people was exposed in the strongest colors. Presented in this 
last point of view the subject assumed an additional importance. 
The question of expediency was at last almost entirely superseded 
by the more engrossing question of constitutionality. The theory of 
our Government was analyzed and unfolded. The most fearful con¬ 
sequences were depicted from an humble acquiescence in such por¬ 
tentous encroachments. The spirit of discussion was exhibited in 
every form which is familiar to the citizens of a Republic. 

The press teemed with essays on both sides. The controversy 
penetrated almost every social circle. Deliberative bodies became 
the theaters of the most eager and animated disputes. 

Among these bodies, the Legislature of Virginia stood conspicuous. 
Devoted to a rigid construction of the Federal Constitution and to 
the most powerful defense of the rights of the States, it displayed 
its principles on this occasion with more than usual ability and zeal. 
Resolutions w r ere introduced by Mr. John Taylor, of Caroline, which 
are since known to have been penned by Mr. Madison. A long and 
spirited debate ensued. Politicians who had been distinguished on 
the theater of the Union rallied w T ith all their power around the 
standard of the Republican Party. John Taylor, of Caroline, 
William B. Giles, and W. C. Nicholas, and others, displayed their 
wonted powers: and many young orators also came forth to give 

3 



4 


ALIEN AND SEDITION LAWS. 


an early promise of the distinction to which they were destined to 
attain. The opposition was led by George Keith Taylor, one of the 
most acute debaters which this State has produced, the father of our 
penitentiary system, too prematurely cut off in the vigor of his years. 
Joined by Lee and by other determined spirits, he made as good a de¬ 
fense as his cause would permit. But they failed; and the Republi • 
can Party triumphed in the House and in a short time in the Nation. 
Thomas Jefferson was soon after elected the President of the United 
States, and the Constitution was at that time preserved from the 
encroachments which threatened to violate its fundamental principles. 

To keep alive the memory of the doctrines which actuated the 
Republicans of those days, as well as to extend the reputation of the 
able speakers who appeared on that occasion, the present edition of 
the debates has been committed to press. They were taken down by 
Mr. Hansford, and the accuracy of the report was worthy of the 
fidelity of the reporter. 

The present edition is struck by the same press which has already 
furnished an edition of Mr. Madison’s celebrated report. The two 
pamphlets ought, indeed, to go together. They are acts of the same 
important drama. For scarcely had the resolutions in 1798-99 been 
adopted when both parties in Virginia exerted themselves to return 
to the next legislature some of their ablest leaders. Patrick blenry 
was elected by the Federal Party and James Madison by the Re¬ 
publicans. But these two illustrious champions were not permitted 
again to meet together. Mr. Henry died before the meeting of the 
legislature. Mr. Madison distinguished himself by that memorable 
ieport which familiarly bears his name and which ought to last as 
long as the Constitution itself. The debates of that session were not 
preserved, but those of the preceding one, which adopted the resolu¬ 
tions on which the report was predicated, form an admirable intro¬ 
duction to that memorable paper. They ought both to be preserved 
for the honor of Virginia and for the safety of the Constitution. 

Richmond, August , 1829. 

In the House of Delegates, 
Thursday , December IS , 1798. 

The house resolved itself into a committee of the whole house on 
ihe state of the Commonwealth, Mr. Brackenridge in the chair, when 
the resolutions presented to the house by Mr. John Taylor, and re¬ 
ferred to the committee, being taken up for its consideration, 

Mr. John Taylor began by expressing great regret at the occasion 
which brought him forward. He conceived it to be an awful one. 
That liberty Avas in danger, and as that rested on the foundation of 
responsibility, every effort should be made to repel attempts to sub- 
\ r ert it. Fie could assure them that his feeble efforts should be used 
for that purpose. He said that two subjects Avere contemplated by 
the resolutions before them, to Avhich he should chiefly confine his 
observations. He should consider the constitutionality of the laws 
referred to in the resolutions and their correspondence with human 
rights, natural and civil. He compared the Executive of Great 
Britain with the Congress of the United States. The prerogatives 
of the first were limited and defined by the Constitution of England, 
as were the powers of the latter by the Constitution of the United 
States: and if the King at any time overleaped his boundaries, it was 
always certainly opposed and met with with correction. He stated 


ALIEN AND SEDITION LAWS. 


5 


the case of ship money imposed by Charles I. What was the conse¬ 
quence of that measure? It was opposed. He applied that case 
to the Congress of the United States. The powers of Congress, by 
the Constitution, were defined, a's clearly as Avere those prerogatives. 
That in Great Britain, where the prerogatives were limited, where- 
ever the executive overleaped their bounds other organized bodies 
Avould always control and check it. So, if Congress overleaped their 
bounds, some organized body should certainty oppose it. Concluding 
the General Government to be limited in its powers, he proceeded to 
inquire if Congress, in passing the alien and sedition laws, had over¬ 
leaped its bounds. He mentioned a law, which Congress had passed 
at the same session, respecting alien enemies, as it had been suggested 
that the one particularly called the alien laAv was justifiable on ac¬ 
count of danger to be apprehended from foreigners. 

This alien enemy law passed by Congress, as well as a law of Vir¬ 
ginia upon that subject, Avere made in favor of aliens. They were 
necessary and found to be the usage of all nations. A contrary 
usage would be cruel and inhuman. Such laws as these were at¬ 
tended Avith mutual advantages to the nations at war. They consti¬ 
tuted a mutual assurance that the persons and property of its own 
citizens would be safe in the country of the other. This Avas not the 
object of the laAv in contemplation. The other laws were sufficient 
for every purpose. That aliens, AAdien arrested and made prisoners, 
w r ere not dangerous. He said he would ask the question whether 
alien friends possessed any rights. If so, they might be secured by 
the Constitution. Then, if they were infringed, the Constitution 
Avas broken. If Congress could infringe the rights of those people, 
they might infringe the rights of others. One usurpation begat 
another. We ourselves might as well be the victims as others. He 
said that alien friends, by the common law, had the rights of life, 
liberty, and property, and that these common-law rights were secured 
by the Constitution; to proA T e Avhich he quoted that clause of the 
Constitution by which those rights are secured, which Constitution 
literally reached aliens by using in all places the term “ persons,” not 
“natives.” He then put the case of our population being increased 
by a considerable emigration of foreigners to this country, who 
might be disposed to retain their foreign citizenship; Ave should then 
haA r e amongst us a body of men of whom the President would be 
despot; they would be entirety in his poAver. He further observed 
that, suppose Government (never an enemy to power) should 
strengthen its hands by corruption, by patronage, by standing armies, 
by a sj^stem of fears (he Avould not say that our Government had 
done so, but in case a government should do so), that in such case 
this body of emigrants thus dependent upon Government would be a 
proper instrument in the hands of the executive to effect its pur¬ 
poses; that executive poAver Avas the greatest enemy which republican 
principles had. He asked if anyone would then assert that to 
strengthen executive power in this way, Avholly unforeseen by those 
A\ r ho formed the Constitution, so as to extend beyond their intention, 
could be agreeable to the Constitution; that republican principles 
were the great end of the Constitution. Then, if he had proA^ed this 
laAv inimical to those principles, he said that he had attained the great 
end at which he aimed. 


6 


ALIEN AND SEDITION LAWS. 


He next observed that the Constitution cautiously attempted to 
distribute its powers. It was nothing more than a deed of trust 
made by the people to the Government. The Government,.then, had 
no right to outstrip its powers. Were they not defined? Had the 
Constitution given any power to deprive any person of trial by jury? 
That if once we were to permit executive power to overleap its 
limits, where was it to stop ? And, if the executive branch exercised 
powers not bestowed it overleaped the Constitution. He asked if we 
had arrived to that situation, that the powers which the people pos¬ 
sessed were to be surrendered. Were we approaching the system of 
divine right? He proceeded to construe the alien law and said that 
the precedent established by it was dangerous, both as it affected 
individuals and as it affected States. That a power inclined to 
usurpation, to the injury of aliens, would be inclined to usurp, in 
the construction of the Constitution, to the injury of the States, and 
that the precedent in the one case would soon ripen into a law for 
justifying the other. 

He next read the sedition law and proceeded to comment upon the 
words of it, especially the words counsel or advise. He asked how 
he could counsel or advise another without speaking to him; conse¬ 
quently these words extended to words spoken. He put the case of 
his counseling his neighbor to withstand the two laws of Congress 
before mentioned. That, by the construction of the last-mentioned 
law, words were reached and duties prevented, so that if he should 
advise his neighbor in regard to those laws the latter one enacted a 
punishment. He then asked what was the case of a representative 
in State legislatures. He had taken an oath to oppose unconstitu¬ 
tional laws. What was he to do? On one hand was perjury, on the 
other a prison. Suppose a law were to infringe the guaranty made 
by the Constitution of a republican form of government ? What 
was a representative to do? Was he not to withstand it? If such 
law should tend to destroy that guaranty were we to wait until the 
enemy’s detachments closed us in on every side? This sedition law 
said yes. In the construction of this law we were placed in the 
hands of lawyers. The judge would construe the law. There were 
two kinds of construction, a strict construction and a liberal con¬ 
struction. The judge might put upon it a liberal construction. He 
stated an historical fact, that sedition was forbidden by the common 
law: that the law of England respecting treason went no farther in 
describing that offense than our law does in describing sedition. 
He then cited the case of Algernon Sidney: that Algernon Sidney 
wrote a book in answer to Filmer to prove “ that the authority of 
kings was not of divine origin (a thing in those days deemed 
necessary to be proved). He wished a necessity might never appear 
for a new edition of this book. For this he was prosecuted and tried, 
condemned, and executed. And this was a liberal construction of 
the law. He thought that this case might well be applied in an 
argument on the subject of this law of ours. However, the law was 
said to be harmless; that to bring themselves within it men must 
unlawfully combine, they must conspire, they must lie, for that they 
might still tell truth without danger. But'this could never satisfy 
him that it was not dangerous, when he recollected that the best 
patriots had been sacrificed by sedition laws, with the help of construc¬ 
tion. He then said that another distinction had been set up, that this 


ALIEN AND SEDITION LAWS. 7 

law was not to restrain the freedom, but the licentiousness of speech. 
This, he observed, was an epithet which might be applied to any at¬ 
tempt to restrain usurpation. Men find no difficulty in pronouncing 
opinions to be both false and licentious, which differ from their own. 
That this same distinction (if it was just) would empower Congress 
to regulate religion, the freedom of which is secured by the same ar¬ 
ticle which secures the freedom of speech. They might in the end be 
induced to regulate the mode of petitioning, that it might be per¬ 
formed orderly, and not licentiously, as it is in some countries, by 
crawling on the belly toward a throne and licking the dust. He then 
observed that a power to restrain treason was more necessary in a 
Government than to regulate sedition; that our Constitution had yet 
limited the power over treason to a few cases, which he stated. How¬ 
ever, Congress might still regulate the punishment in case of treason, 
and it was possible that they might establish in such case a punish¬ 
ment short of death, a punishment even inferior to that for sedition. 
What then would result? Treason was the genus, sedition a species. 
If the first were limited and the second not, what security had we? 
He then read the third article of the amendments to the Constitution 
concerning freedom of speech, etc., and asked in what sense this 
clause was understood at the time of adoption. Could it then have 
been contemplated by anyone, that such a law as this would ever 
have been passed? The adoption of the Constitution by this State 
was accompanied by a condition containing a reservation of these 
very rights, so that they must have been understood in a very differ¬ 
ent sense then than when these laws of Congress passed. 

He read the ratification of the Constitution by the convention of 
this State, and said that the same ought to be looked upon as a 
cotemporaneous exposition of the part of the Constitution referred 
to. He then asked if the sedition law did in no respect cancel, 
restrain, or infringe the liberty of the press. And concluded his 
observations upon the first of the two subjects, to which he had before 
mentioned he should confine them, by saying that if he had proved 
the laws spoken of to be unconstitutional, the objection to them on 
that ground was strong; and by asking further, could they then be 
justified upon the ground of necessity, or that they were harmless? 

He began his observations upon the second subject by asking if 
those laws were correspondent with human rights? Those rights, 
he said, were freedom of speech, freedom of person, a right to justice, 
and to a fair trial. If an alien possessed those rights, he asked, could 
he avail himself of them under the present law? Could a citizen, 
under the sedition law, exercise the freedom of speech, or of religion, 
which last, a few days before, he had heard called a social right? It 
was not so. It was either a natural duty or a natural right. Was 
it possible that at this day religious worship could be restrained by 
law ? The right of opinion, he said, should be held sacred. It ought 
never to be given up in any one instance. Religion was only a branch 
of opinion. With what propriety could that range of thought, be¬ 
stowed by the Creator upon the human mind, be controlled by law? 
He deemed it a sacrilege for Government to undertake to regulate 
the mind of man. It was a subject by no means within its powers. 
What would be the consequence of such a measure ? Universal igno¬ 
rance among the people. He then asked if ignorance was a desirable 


8 


ALIEN AND SEDITION LAWS. 


thing? And were the free exercise of the faculties of the human 
mind to be once restrained and shut up, he would ask them, then, 
what was man? He was therefore opposed to those laws as being- 
destructive of the most essential human rights. He again asked, if 
>uch laws were ever contemplated at the time of the adoption of the 
Constitution, and what would be the consequence of the destruction 
of those essential human rights of which he had spoken? What 
would be the probable effects of those laws? They would establish 
Executive influence and Executive influence would produce a revolu¬ 
tion. There was great danger in throwing too great weight in any 
one scale. He then proceeded to inquire whether those laws would 
increase Executive influence, and concluded that they would. That 
they would by begetting fear. If public opinion were to be directed 
by Government, by means of fines, penalties, and punishments, on 
the one hand, and patronage on the other, public opinion itself 
would be made the stepping stone for usurpation. If Congress 
should undertake to regulate public opinion, they would be sure 
to regulate it so as to detach the people from the State govern¬ 
ments, and attach them to the General Government. But, he said, 
the most dangerous effect of those laws would be the abolition of the 
right to examine public servants. He again referred to Sidney’s 
case and recited the doctrine of Filmer to illustrate this subject. To 
bring about such a measure as this, he said, it would be necessary for 
Congress, in the first place, to establish the point that they were the 
masters and not the servants of the people. He said Government 
might do wrong. Could a criminal be ever brought to justice who 
had a power to regulate the mode of his own examination? And is it 
not criminal in a Government to oppress a people? If its acts were 
wrong they would produce discontent; discontent was the only road 
to redress. But redress could never be obtained, because the sedition 
law prohibited the only mode of obtaining it by punishing that very 
matter of exciting discontent. He asked what was despotism? He 
defined it to be a concentration of powers in one man or in a body of 
men. The manner of concentrating them was unimportant; the end 
was the same. Individuals and States were equally affected by such 
concentration of power. The concentration of it in an individual 
would enslave other individuals; a concentration of it in Congress 
would operate to the destruction of the State governments; and that 
if the balance of power which the State governments ought to hold 
against Congress were once lost, we must be precipitated into a revo¬ 
lution. He adverted to the vast power concentrated in the Senate of 
the United States. This had been seriously viewed at the time of the 
adoption of the Constitution and since. That at the time of framing 
the Constitution mutual concessions were made between the States, 
which he believed to be the sole reason for admitting the small States 
to an equal share of power in that body with the large, the real 
counterbalance of which concession was the existence of State gov¬ 
ernments. Thence he concluded that, being thus situated, if the 
balance which the States ought to hold should happen to be lost, the 
small Senate of the United States might govern America. He further 
said that although he had read in pamphlets and newspapers, and 
also had heard it reported, that such principles as he held led to com¬ 
motion, still he would assert that it was more likely to happen that 
a majority of small States might adopt measures which would oppress 


ALIEN AND SEDITION LAWS. '9 

the rest, although they should contain the greatest number of citi¬ 
zens: and that the result of this would be a civil war. 

The many would not submit to the few, and all history would show 
that a majority armed with power would never yield it without a 
struggle. He said that oppression was the road* to civil war. To 
prove which he asked what produced the war between Britain and 
America ? Oppression. What produced the Revolution of France? 
Oppression. What produced the revolt of the United Provinces 
from Spain? Oppression. He said the way to keep a nation quiet 
was to make it happy; that oppression goaded it on to civil war. 
In justification of which opinion he stated that the people of the 
United States were at this time under the pressure of certain griev¬ 
ances. The way, then, to stop civil war would be to stop oppression. 
But, said gentlemen, we must not disunite. To this he would answer, 
remove oppression and union would take place. He had observed it 
asserted in a pamphlet circulated at this place that these late measures 
of the Government might be justified on the ground of self-defense. 
Under such a pretense as that, he said, Congress might pass any law 
whatever. This never could have been the object of the Constitu¬ 
tion. He said that the old instrument of confederation contained 
the same language, but no such power as that contended for was ever, 
claimed. Had it ever possessed it, its want of energy would not have 
suggested the present Constitution. (He then read the preamble of 
the Articles of Confederation, reciting that the same was entered into 
for the public good, etc.) By adopting a different construction from 
that made by himself, he said the propriety of no law which Congress 
should ever pass could be denied. He then concluded by saying that 
our rights were the offspring of pangs and peril. Let them never 
then be wrested from us. It was the custom in some countries for 
the prince to send for the first-born child of every subject to have 
him trained as a soldier for his army. In that case could the dis¬ 
tressed parent be assured that by surrendering his first born he would 
secure the rest? The first born of American rights was the free ex¬ 
amination of public servants. Were we to surrender that, could we 
be certain that the rest would be secured? That these rights were 
the fruit of victory and recompense of blood. We had defended 
them against the arms of Britain. Never, then, let us surrender 
them to the arts of sophistry and ambition. 

Mr. George K. Taylor moved that the committee might rise in 
order to give time to himself and the other members to consider well 
the subject before therfi. He said it was an important one, as the 
object of inquiry seemed to be to impeach with unconstitutionality 
two laws passed by both Houses of Congress and by them declared to 
be constitutional. 

Mr. Fousbee made a few remarks in opposition to those of Mr. 
George K. Taylor in regard to the probable constitutionality of the 
laws, by reason of their having passed both Houses of Congress. 

Mr. Nicholas hoped that the gentleman from Prince George did 
not intend, by moving to rise, to preclude from speaking any person 
then disposed to speak. 

Mr. George K. Taylor said that he did not. But after waiting 
some time and no member rising to speak, he renewed his motion for 
the committee’s rising. 

The committee rose accordingly, reported progress, and had leave 
to sit again. 


10 


ALIEN AND SEDITION LAWS. 


In the House of Delegates, 

Friday , December LJ, 1798. 

The house resolved itself into a committee of the whole house on 
the state of the Commonwealth, Mr. Brackenridge in the chair, when 
Mr. John Taylor’s resolutions being still under consideration, Mr. 
Magill said, if he were in order, he would move that the resolutions 
should be read. 

The chairman declared the same to be in order, and the resolutions 
were read accordingly by the clerk. Whereupon, 

Mr. George K. Taylor arose and said that he never felt himself im¬ 
pressed with more awe than on that occasion. The subject was of 
itself sufficiently momentous, but the resolutions before them ren¬ 
dered it still more so. They contained a declaration, not of opinion 
but of fact. They declared the acts of Congress, called the alien and 
sedition laws, to be unconstitutional and not law. These laws, he 
said, had been passed by both Houses of Congress. One of those 
Houses was formed of the immediate Representatives of the whole 
American people, the other of Members chosen by the State legisla¬ 
tures. These two Houses thus formed and thus representing the 
whole people and the respective State sovereignties, had passed those 
laws after solemn deliberation and discussion, and declared them to 
be constitutional. 

In such case, he conceived, the Legislature of Virginia, the rep¬ 
resentative'of a part only of the American people, ought to deliberate 
seriously before they undertook to give an opinion upon them, and 
if their opinion should be such as the resolutions stated they should 
still endeavor to couch that opinion in different language, for, by 
those resolutions as they then stood, the people were encouraged most 
openly to make resistance. He compared the two legislative bodies, 
Congress and the Assembly of Virginia, together. He presumed the 
former to be as wise, as watchful of the public interests, as the latter. 
He then called the attention of the committee to what had been the 
determination of the legislatures of the other States. All which had 
taken these laws under their consideration had given them their de¬ 
cided approbation, either by way of resolution or address to the 
President. It could not be denied but that they had some wisdom 
and that it was not exclusively confined to the Legislature of Vir¬ 
ginia. As the legislatures then of so many States had concurred in 
the approbation of them, he thought it necessary for the legislature 
of this State to hesitate in expressing its opinion of their unconsti¬ 
tutionality, especially when they reflected on -the consequence attend¬ 
ing it. for if these laws were unconstitutional the resolutions made it 
the duty of the people to defend themselves against them. He said 
he would then proceed to show to the committee that those laws were 
not unconstitutional. I 11 that attempt he was not certain whether 
or not he should succeed. He possibly might bring them to doubt, 
and should he do that he should feel in some measure satisfied. On 
the other hand, they might be assured that the consequences of pur¬ 
suing the advice of the resolutions would be insurrection, confusion, 
and anarchy. The business upon which they were acting, he said, 
was of an extensive nature. The gentleman from Caroline had 
spoken upon both laws. lie should confine himself to the alien law 
only. He conceived that would be as much as he could perform. 


ALIEN AND SEDITION LAWS. 


11 


For in doing that he should fatigue himself, and, he expected, the 
committee also. 

He proceeded then to examine the situation of aliens coming into 
this country. He said they had no more rights here than they had 
elsewhere. He asked upon what footing aliens came into any coun¬ 
try. by right or by permission? Still it was said that their rights 
were to be affected by this law of Congress. He then cited and read 
Vattel, page 157, section 94, to show that a nation may prohibit 
foreigners from entering its territory, and from that authority con¬ 
cluded that their admission into a country was by no means a matter 
of right, but of favor. He said the alien did not come within the 
scope of the general laws of the country into which he came. During 
his stay therein he was to be protected, indeed, by those laws, but was 
not the object of them. He cited and read Yattel again, page 100, 
section 231, and Blackstone ? s Commentaries, volume 1. page 259, to 
show that by the law of nations it is left in the power of all States 
to take such measures about the admission of strangers as they think 
convenient; that so long as their nation continued at peace with that 
in which they resided and they behaved themselves peaceably they 
were under the protection of the Government of that nation, though 
liable to be sent or ordered away whenever that Government saw oc¬ 
casion or its safety required it. If there were nothing then, he said, 
in the Constitution of the United States respecting the migration of 
persons the doctrine of the law of nations which he had read was 
sound and the General Government might by that lawfully restrain 
or regulate the entry of aliens and order them away if necessary. 
But the Constitution had a clause in it upon that subject, being the 
first clause of the ninth section of the first article, which he read, in 
these words: “ The migration or importation of such persons as any 
of the States now existing shall think proper to admit shall not be 
prohibited by the Congress prior to the year 1808, but a tax or duty 
may be imposed on such importation not exceeding $10 for each 
person.” This clause, then, he said, contained a recognition of the 
right of Congress to prohibit migration or importation after the 
year 1808. In his opinion, too, the prohibition of the right of Con¬ 
gress by that clause extended only to such States as were existing 
at the time of framing the Constitution, which showed that Congress 
.of course might regulate the migration of persons to such States as 
were established after that time, and that was exemplified by the 
prohibition by Congress of the admission of slaves into the new 
States. The clause read then took away from Congress the right of 
prohibiting migration within a limited time. But though the entry 
was prevented, the question then recurred, Was their removal when 
dangerous prevented also? The question was of great importance. 
When these States, he said, declared themselves independent they 
entered into articles of confederation. That was a system composed 
of one body; there was no Executive, no judiciary. By that system 
that single body could enact nothing binding on the people. It was 
consequently dependent on the several States for the execution of all 
its measures. 

The old Congress wished to establish a duty of 5 per centum only 
on goods imported, but it could not be carried into effect by reason of 
the opposition of the States. To obviate that mischief the Federal 
convention was appointed which assembled and framed the present 


12 


ALIEN AND SEDITION LAWS. 


Constitution. That took from the several States all matters of a 
general nature; all matters relating to foreign nations. It established 
legislative, executive, and judiciary branches, which acted upon the 
several matters coming within their respective spheres, and it cer¬ 
tainly intended that all matters of general national concern should 
be confided exclusively to the General Government. There was a 
general consent of the people that such matters should be vested in 
the General Government and taken from the States. He then read 
the list of powers vested by the Constitution in the General Govern¬ 
ment. By the general law of nations, he said, the admission of aliens 
into a country was altogether a matter of grace. They might there 
fore be removed by the Government of the country whenever it was 
deemed necessary. If the General Government, then, possessed noc 
the power of removal, one great mischief of a general nature, which 
it was intended to remedy, would remain as before. The Union 
would be dependent upon 16 sovereign and jealous States for carry¬ 
ing into effect such a measure. Some of these States, too, might be 
on the verge of insurrection. An alien banished from one might be 
admitted into another which would protect him, and thereby the 
general welfare in that instance defeated and Congress laid at the 
mercy of the particular States. He asked what w T as the situation of 
America and France at that time? It w T as true there w r as no declara¬ 
tion of w r ar between them, but they w 7 ere not at peace. He enumer¬ 
ated their various acts of hostility toward us, and then asked if there 
w T as no danger to be apprehended from aliens of that country. He 
himself thought there v T as. Fie related also the numerous designs 
and machinations w 7 hich they had been contriving against us. He 
deemed it, therefore, highly necessary that the General Government, 
established for general benefit and common protection, should possess 
. the powder of removing them. B ut, if the law’ of Congress were to 
be construed unconstitutional, the General Government could not 
remove them. He read the observations of Mr. Jefferson respecting 
the necessity of a government having the powers of defense and pro¬ 
tection, also Mr. Madison’s speech in the convention of Virginia to 
the same effect, and applied them to the case in question. It was 
true, he said, that the Constitution prohibited the General Govern¬ 
ment from preventing the migration of foreigners prior to the year 
1808, but at the same time the principles of protection must induce 
a belief that the Constitution did not intend or enact that v’hen here 
they should not be removed, however dangerous to the general weal. 
Still, hov’ever, it w 7 as objected that by the twelfth amendment to 
the Constitution it was declared that the powers not granted to Con¬ 
gress w r ere retained by the people or the States, respectively.* It w r as 
clear, he said, that even without that amendment no power could have 
been exercised by Congress which w r as not expressly given to it or 
did not follow 7 by necessary implication. The case, he said, w 7 as still 
the same. In regard to an express grant there could be no dispute, 
and the doctrine of necessary implication w T as proved by the Con¬ 
stitution when in the last clause of the eighth section it grants to 
Congress the power “ to make all law s which shall be necessary and 
proper for carrying into execution the foregoing powers and all 
other powers vested by that Constitution in the Government of the 
United States or in any department or officer thereof.” From that 
clause, then, he said, the power of Congress to pass the law' in ques- 


ALIEN AND SEDITION LAWS. 


13 


tion was clearly sanctioned by necessary implication. All cases 
arising under the Constitution could not be foreseen and enumerated, 
therefore that clause was inserted for the purpose of enabling Con¬ 
gress to carry into effect the powers expressly given it by the Con¬ 
stitution. Whatever then necessarily flowed from those express 
powers were within the scope of Congress. He then asked if there 
were anything in the Constitution from which the law in question 
could necessarily and properly proceed. To discover that, he first 
proceeded to examine the preamble. That, he said, declared the 
Constitution to be formed in order to form a more perfect union, 
establish justice, insure domestic tranquility, provide for the coftimon 
defense, promote the general welfare, and secure the blessings of 
’ liberty to ourselves and our posterity. The passage of an alien 
law then, he said, was justifiable for the purpose of answering the 
four great ends last mentioned in the preamble, which showed the 
object and intention of the Constitution. But, he said, there was 
something in it more positive. He called their attention to that 
clause in the enumeration of the powers of Congress “to define and 
punish piracies and felonies committed on the high seas and against 
the law of nations,” and said that aliens came with it, since for an 
alien to conspire against the peace of the Nation which permitted 
him a residence therein was an offense against the law of nations. 
He further read the clause declaring that the United States would 
guarantee to the several States a republican form of government and 
protect each of them against invasion. He relied much upon the 
term protect used in that clause. 

Protection, he said, was a preventing, a guarding against. He 
would compare it to a shield which an individual cast before him to 
protect himself against the javelin before it reached him, for it 
would be no protection if he waited till the wound was inflicted. He 
observed that whatever flowed from a grant followed the grant itself. 
Congress, therefore, in protecting the State might enact cautionary 
laws for the purpose. A law sending away dangerous aliens was a 
cautionary law, tending to protect the States. Every society had as 
much right to prevent the mischief which aliens might do as to 
punish them for it after it was done. Aliens might be punished for 
crimes as well as citizens. So laws might be passed for preventing 
the commission of crimes by them as well as for preventing the com¬ 
mission of them by citizens. But such a law must always be tem¬ 
porary. It could not be permanent. It would continue only so long 
as danger existed. It would affect only dangerous persons. Aliens 
could only be dangerous in time of war or in times verging toward 
war. In times of safety such a law would be unnecessary and im¬ 
proper. He agreed, therefore, that a permanent law of that kind, 
including all aliens passed before 1808, would be unconstitutional, 
since it might absolutely defeat the ninth section; but that a tem¬ 
porary law, passed only for the purpose of ordering away dangerous 
aliens, was a law of protection to the States. It was a necessary 
power for every government to possess. A government would be 
worth nothing without it, since it could not protect the people. He 
then proceeded to take the Constitution altogether, recapitulated the 
several clauses before cited, and said it was a rule of construction of 
all instruments that all the parts should be taken and considered 
together, that they might stand together, and be reconciled with' one 


14 


ALIEN AND SEDITION LAWS. 


another if possible. He called their attention to two clauses of the 
Constitution, the ninth section of the first article, reserving to the 
States the right of permitting migration, etc., and the fourth section 
of the fourth article, which declares that the United States shall pro¬ 
tect each State against invasion. When one part, then, of the Con¬ 
stitution, he said, reserved to the States the right of permitting mi¬ 
gration and another granted to Congress the poAver and duty of 
passing all such laws as would protect the States from invasion or 
violence, would not the same operate as a proviso qualifying the 
former general expression, and allow Congress, from principles of 
protection, to expel dangerous aliens? He thought at any rate the 
power in that case contended for a necessary one, even were it not 
in the Constitution. And in such a case the legislature ought to 
recommend an amendment to the Constitution for the' purpose. 
Since the adoption of the Constitution, he said, Congress had passed 
laws for erecting forts in different parts of the United States. He 
asked what part of the Constitution gave them that power. They 
must derive it from the fourth section of the fourth article only, 
the same being for the purpose of protection. There was a necessity 
for exercising this power at that time. We had amongst us a number 
of dangerous Frenchmen. The chief author, however, of the plots 
had sneaked off, as well as his associates. He said he was happy to 
be clear of them. Since they were gone, that law was no longer 
necessary; Congress might then properly repeal it. Yes, he said, 
the incendiaries were gone. He congratulated America upon it. He 
hoped they never might return. But an objection had been made 
. that the alien law had taken away from the poor alien the trial by 
jury. He said that aliens were not a party to the compact, but citi¬ 
zens only. The Constitution secured rights to citizens, and declared 
that they should not be deprived of them but by trial by jury. But 
aliens, not being a party to the compact, were not bound by it to the 
performance of any particular duty, nor did it confer upon them any 
rights. He referred to Yattel again to show that by the law of 
nations the admission of aliens into a country was not a matter 
of right but of favor, and observed that ordering away an alien was 
uot divesting him of any right, but withdrawing from him a favor; 
and that it was new doctrine that a favor could not be withdrawn 
but by trial by jury. He then observed that the alien law did not 
touch life, liberty, or property, but only directed the alien to be 
removed. If he would not remove himself, however, when ordered 
away, but remained obstinate, he might then be imprisoned. He 
read and relied upon the favorableness of that clause of the law 
which extended to the suspected alien the right of proving to the 
President that he was harmless. He still asserted that the law of 
nations gave a power to the Government to remove aliens when dan¬ 
gerous; and that, by the law in question, neither life, liberty, nor 
property was touched, except in case of contumely. He then stated 
the case authorized by our municipal laws respecting surety of the 
peace, and asked, How did the trial by jury stand in that case? The 
citizen, he said, was deprived of it, and that, too, in a free country. 

The case of the alien, then, was not harder. The trial by jury was 
dispensed with in the case of the peace breaker; therefore the same 
might be done in the case of an alien. He said that the terms upon 
which aliens were admitted were their not intermeddling with the 


ALIEN AND SEDITION LAWS. 


15 


concerns of the Nation. Should they do so, and, upon being required 
to withdraw, continue obstinate, they must be committed in the 
same manner as citizens who refused to give surety of the peace. 
Another objection had been made, that if they were sent out with¬ 
out trial by jury, they might next be deprived of life and property 
without it. This, he said, could not be done. An alien was entitled 
to them as natural rights; and therefore, as they were rights, could 
not be deprived of them without a trial by jury. The case was quite 
different in regard to his removal, as his admission into the country 
was not matter of right, but was merely a matter of favor. It had 
been also objected that the three powers of government were all 
blended in the President by the alien law. He said that they were 
not. But. if such a power in regard to aliens were necessary, it must 
be intrusted somewhere. It could not be with a private individual. 
It could not be with the judiciary. It could not be with the legis¬ 
lature: but might most properly be with the Executive. He. by the 
Constitution, was bound to execute the laws; therefore it was most 
properly intrusted with him, being the executive officer, with whom 
all persons and bodies whatever were accustomed to communicate. 
It could least of all be intrusted with a court which transacted its 
business publicly. For these matters must be in confidence. That 
was often necessary for nipping things in the bud. Secrecy then be¬ 
ing absolutely necessary, and a court of law being publicly held, and 
at stated periods the proceedings might be divulged or the explosion 
take place before they could obtain information or try the fact. 
And all that, too, not for the sake of a matter of right, but mere 
courtesy. It could not be intrusted to the legislature unless its sit¬ 
tings were permanent. It could then only be intrusted with the Presi¬ 
dent. To prove the justice and fairness of this regulation, he again 
introduced the case of a man brought before a magistrate to give 
surety of the peace. On the complaint of A, he said, the magistrate 
might arrest and imprison B until he gave security to be of good 
behavior. In that case a man was deprived of liberty without a 
trial by jury, but that was right because society was bound to pro¬ 
tect as well as vindicate its citizens; and before a trial of the fact 
could be had, the person apprehending danger might be murdered. 
He again cited Mr. Jefferson’s piece to prove that no cases under 
the law of nations were ever submitted to a jury to be tried. He 
cited also part of a speech of Mr. Madison, in the Convention of 
Virginia, nearly to the same effect, and thereupon observed that 
the trial by jury was only used in municipal regulations where citi¬ 
zens and others were concerned under the particular laws of the 
State, and not in cases between the Government and aliens which 
arise under the law of nations. That even in matters of right the 
right of the individual ought to yield to the good of the community. 
He then read that clause in the Constitution concerning the suspen¬ 
sion of the writ of habeas corpus and said that the suspension of 
that writ might take place during the existence of rebellion or inva¬ 
sion. In that case a citizen might, at the will of the President, be 
committed and confined until the existing danger was over. And 
if a citizen invested with all civil rights might thus be confined in 
a time of danger, so ought an alien, who had no positive political 
right whatever, when the good of the community required it. He 
said he might produce many other instances to prove the propriety 


16 


ALIEN AND SEDITION LAWS. 


of necessary implication. He then mentioned the subject of foreign 
intercourse and asked whence was that power derived? He knew 
no part of the Constitution which particularly authorized it. It 
could be derived only from that clause of the Constitution which 
prohibited to the States the power of making any treaties or enter¬ 
ing into any agreements. It had been observed by the gentleman 
from Caroline that Congress had passed a law to send aw^ay alien 
enemies, and that was a good law. Where was that power to be 
found? Nowhere except it were derived from that protective power 
which was to be gathered from the Constitution by means of impli¬ 
cation only or by implication from the powder given to declare war. 
He further asked at what time those laws were passed and what 
was the cause. And then observed that Avhatever construction led 
to an absurdity was erroneous. He then supposed the case of the 
States having the power of admitting aliens and the General Gov¬ 
ernment not having the power of removing them. The Assembly of 
Virginia might think a whole army of aliens admissible. Suppose, 
he said, that Bonaparte and his army (if they could ever get out 
from the Nile again) were to arrive within the State, and they 
should think them, too, admissible; by the construction of the resolu¬ 
tions before them, Congress in such case ought not to remove them, 
The right of protection, he said, was a natural right, appertaining 
to each individual, and that a number of individuals had as much 
right to protect themselves as one individual. 

Did the Constitution prohibit such a right? He then observed 
that both the Constitution of the United States and of this State 
directed that the trial by jury should be held sacred. He said he 
would then proceed to examine if that right had never been preter- 
mitted by any law of the State, and requested that the law of Vir¬ 
ginia for removal of aliens, passed in 1792, should be first read. 
(It was read accordingly by the clerk.) He then observed that, 
although the constitution of the State directed that the trial by jury 
should be held sacred, yet that law “ authorized the governor to ap¬ 
prehend and secure and compel to depart out of the Commonwealth 
all suspicious persons, etc., from whom the President of the United 
States should apprehend hostile designs against the said States. 5 ’ 
In that instance, then, a previous legislature had acknowledged as 
a matter indisputable what this legislature disputed, that a suspicious 
alien might be sent away at the instance of the President. Their 
law even authorized the sending away the alien without a trial, and 
in the meantime his being imprisoned. Yet that legislature in pass¬ 
ing that law did not suppose it had violated the Constitution. He 
then read the act of Congress under consideration. He compared 
both acts together, and said that he looked upon them to be nearly 
the same. If there were any difference between them, he said, it was 
that the law of the State was more severe than the law of Congress 
inasmuch as the former subjected the alien to imprisonment at all 
events, the latter onl} r in case of his refusal to remove himself. It 
was remarkable, too, he said, that the same law of the State, although 
passed in 1792, was reenacted from one passed in 1785, 18 years ago, 
and so many years nearer than the present time to the Revolution, 
when it is to be supposed the principles of that Revolution were much 
purer than they were at the present time. He then contended that 
there was the same reservation to the people of all powers not granted 


ALIEN AND SEDITION LAWS. 


17 


to the State government as was to the States of all powers not 
granted to the General Government. Consequently, the trial by jury 
being declared sacred by the Bill of Rights, the legislature of the 
State could have no more power by the Constitution to pass such a 
law than Congress had by the Constitution of the United States. 
Yet no complaint against such a law had ever been heard until the 
law of Congress was passed. All the clamor had been reserved for 
that alone. He again observed that no other State legislature had 
passed any such resolution as the one before them. They must be 
presumed to be equally watchful; they must be presumed to have 
wisdom, too, and that it was not exclusively confined to this legisla¬ 
ture. They should hesitate, therefore, in making such a declaration 
as was then contemplated. He then called for the reading of the law 
of the State which authorized the delivering up a citizen committing 
a crime in a foreign country, at the instance, he said, of the United 
States, without trial by jury on mere suspicion and on demand. 
(The clerk read the law.) Mr. Taylor then called the attention of 
the committee to the last clause of the law, from which it appeared 
that the offender might be tried by a jury for the offense in this State, 
but was deprived of such a trial b}^ the fourth section, where he was 
delivered up to a foreign nation on requisition. He ascribed the 
reason for dispensing with the trial by jury in the latter case to be 
because it was a case within the law of nations, which admits no 
trial by jury, and still that law was thought not incompatible with 
the Constitution. He observed that the gentleman from Caroline 
had dilated much upon the probable effects of the law of Congress 
in question. He would indulge himself in the same manner. 

What, said he, would be the situation of this country were it once 
known that Congress had no such power as that of removing aliens? 
He begged them to recollect what horrid scenes of devastation and 
carnage had been exhibited by Frenchmen in their own island of 
Santo Domingo. If France would abandon her people there and 
desolate the fairest colony in the world, could it be supposed that 
they would love us more than themselves; that they would spare their 
foes ? He begged them to recollect, too, the doubtful state of affairs 
between our country and France. It was true that the two nations 
were not at war, since no declaration of war had been made on either 
side; but they were not at peace, since each party was seizing the ves¬ 
sels of the other. War, then, might ensue, and at the time the alien 
law was passed it was a thing extremely probable. Every nation be¬ 
fore it struck prepared as deadly a blow as possible. He then asked if 
the French could wound us in any respect so vitally as by arming the 
slave against his master. Attempts, he said, had been already made 
by French emigrants to excite our slaves to insurrection. Suppose, 
then, they were to attempt the thing again and an insurrection should 
accordingly take place, what would be the consequence? In that 
common calamity, he said, the ranks of society would be confounded, 
the ties of nature would be cut asunder, the inexorable and blood¬ 
thirsty negro would be careless of the father’s groans, the tears of 
the mother, and the lamentations of the children. 

The loudest in their wailings would be their wives and daughters 
torn from their arms, with naked bosoms, outstretched hands, and 
disheveled hair, to gratify the brutal passion of a ruthless negro, 

52068—S. Doc. 873, 62-2-2 


18 


ALIEN AND SEDITION LAWS. 


who would the next moment murder the object of his lust. He then 
asked how all that was to be prevented. By vesting the General 
Government with that power to remove such aliens, which it had 
already so generously exercised for the purpose in the law then under 
consideration, a law particularly calculated for the protection of the 
Southern States. He then mentioned what success the French had 
had in other countries into which their emigrants had been admitted. 
What intrigues they had carried on in Venice, Switzerland, Holland, 
etc., all which countries had been expunged from the list of Repub¬ 
lics and added to the already overgrown dominions of France. These 
events, he said, had been brought about chiefly by stirring up the 
people to discontent, by alien incendiaries. It was necessary, then, 
that the United States should adopt proper measures to prevent such 
mischiefs. To that end, said he, let us cherish the law passed for the 
purpose. He then proceeded to relate the late conduct of the French 
toward us and what description of persons had migrated from that 
country to the United States, the most noted characters of whom 
were Volney and Talleyrand. He made several remarks upon the 
conduct of both of them while in this country, but gave a particular 
account of the peregrination of the latter from Europe to America, 
thence back again to Europe; how he was denounced and proscribed 
by his countrymen, restored to favor again, and in the end preferred 
to the ministerial office which he then held. It behooved the people 
of this country, therefore, to be on their guard against him and all 
the rest. He wished, he said, to conclude, for he was conscious that 
he had fatigued himself, and he supposed the committee also. He 
should be glad, however, to be permitted at some other time to de¬ 
liver his sentiments in regard to the sedition law. He thought, in¬ 
deed, that the best way thereafter would be to discuss one law at a 
time. He further observed that the Members of that Congress which 
had passed those laws had been, as far as he could understand, since 
generally reelected; therefore he thought the people of the United 
States had decided in favor of their constitutionality and that such 
an attempt as they were then making to induce Congress to repeal 
the laws would be utterly nugatory. 

Mr. Ruffin arose next, and said that he was convinced his abilities 
would not enable him to place the subject in such a light as it would 
be placed before it was finished. However, as it was a matter of 
much importance, he was induced to assign his reasons for the vote 
which he was about to give. He should confine himself, he said, to 
two points, the constitutionality of the laws and the consequences. 
The alien law, he said, was unconstitutional in two points; and, after 
observing that, although an alien did not enjoy all the rights of a 
citizen, yet he enjoyed some. He proceeded to show in what points 
that law was unconstitutional. He thought it so for two reasons: 
First, because it blended several powers in one person, and secondly, 
because it contained powers not granted to Congress by the Consti¬ 
tution. He then proceeded to state how the alien was to be deprived 
of the trial by jury, and to be banished for particular acts at the 
time of their commission innocent, but which might, by a retrospec¬ 
tive operation of the said act (the President being thereby armed 
with legislative and judicial as well as executive power), be made 
criminal. The gentleman from Prince George, he said, had admitted 
that if Congress were to pass a law to exclude all aliens forever, 


ALIEN AND SEDITION LAWS. 


19 


prior to the year 1808, it would be unconstitutional. Mr. Ruffin then 
begged leave to inquire as to the difference of the effect which such a 
law would have from the present alien act of Congress should Con¬ 
gress annually think proper to reenact the law as it now stood until 
1808. The principle and effect, he said, were the same. The only 
rational conclusion, then, to be drawn from the concession of the 
gentleman was that if Congress be incompetent to the passage of a 
permanent law (except, indeed, where the Constitution interposes) 
they must be incompetent to the passage of a temporary one. But 
the gentleman, he said, had attempted to prove the constitutionality 
of that act by saying that Congress had passed or might pass laws 
respecting alien enemies. The cases, however, Mr. Ruffin said, were 
extremely different. Congress alone could determine upon war or 
peace; consequently, alien enemies were proper subjects for congres¬ 
sional legislation, but that alien friends were exclusively subject to 
the sovereignty of the several individual States, as the twelfth article 
of the amendments to the Federal Constitution expressly declares, 
that “ the powers not delegated to the United States by the Consti¬ 
tution nor prohibited by it to the States are reserved to the States 
respectively or to the people.” And as at the same time, he said, 
the only power given by that compact to the General Government 
over alien friends was in the ninth section of the first article, it must 
follow that this was one of the rights reserved to the States. 

The gentleman last up, he said, had contended, however, that this 
power was rightfully exercised by Congress and had taken the broad 
ground of construction and implication upon which to erect his 
fabric. Construction and implication, Mr. Ruffin said, was a doc¬ 
trine which he had hoped was banished from the councils of America. 
It was a doctrine which the people of America had unanimously and 
uniformly protested against. It was the exercise of this kind of 
right by the British Parliament which involved us in a war with 
that Government. It was to guard against the exercise of such a 
power that the State constitutions were formed: and it was that ab¬ 
horrence in America to constructive and implied rights that induced 
the specific delineation of congressional powers. Let them admit, 
he said, the position of the worthy member, and then mark the extent 
to which it would carry them. In the preamble to the Constitution 
the causes designed to be produced by that compact are enumerated. 
Amongst them the following: “ To provide for the common defense, 
promote the general welfare” ; and in the eighteenth clause of the 
eighth section of the first article, “ to make all laws which shall be 
necessary and proper for carrying into execution the foregoing 
powers,” etc., were the parts of the Constitution by which it was con¬ 
tended that those constructive and implied rights are given. Sup¬ 
pose, said Mr. Ruffin, the General Government should b eof opinion 
that those objects would be produced in a higher degree by continu¬ 
ing the present members in office for 10 years or for life? Was there 
any person who then heard him who would think such an exercise 
of power legitimate? Certainly not. Yet he contended that such 
a power was as impliedly given by the Constitution as that which 
Congress had taken upon itself to*exercise over alien friends. Mr. 
Ruffin then concluded by observing that as it was then late and the 
committee appeared to be fatigued he should reserve the rest of his 
observations for another opportunity. 


20 


ALIEN AND SEDITION LAWS. 


The committee then rose, reported progress, asked and had leave 
to sit again. 


In the House of Delegates, 
Saturday, December 15,1798. 

The house resolved itself into a committee of the whole house on 
the state of the Commonwealth, Mr. Brackenridge in the chair, when, 
Mr. John Taylor’s resolutions being still under consideration, 

Mr. Mercer arose and said that he felt great difficulty in prevail¬ 
ing upon himself to take a part in the very interesting discussion 
which had arisen and would probably be continued upon the resolu¬ 
tions submitted to the committee. This difficulty was produced, not 
by any want of confidence in the rectitude of the opinion which he 
entertained, or in the purity of the motives that would ultimately 
direct his vote. On the one hand, he was deeply impressed with the 
importance of the subject; on the other, he felt and acknowledged 
his own inability to do justice to its merits; but in proportion to the 
magnitude of the question was his solicitude to explain the principles 
upon which his opinion was formed. The manner in which the laws 
complained of had been defended here and elsewhere was, to his 
jmind, more alarming than the laws themselves. It showed that gen¬ 
tlemen were ready to defend not only existing violations of the 
Federal Constitution, but any infractions which might hereafter be 
committed upon it. For if the opinions which the gentleman from 
Prince George submitted to the committee yesterday be correct the 
nature of that Constitution was changed. It was not what the people 
and States understood it to be at the time of its ratification. Its 
powers were enlarged to a dangerous extent. It could no longer be 
considered as producing a confederation, but certainly established 
a consolidated Government. 

Every question, Mr. Mercer said, which related to the respective 
powers of the State and General Government was in itself of mag¬ 
nitude sufficient to engage the whole attention of gentlemen who 
were desirous of preserving to each its proper powers and to main¬ 
tain that entire independence which belongs to each and which each 
had a right to enjoy. He was therefore surprised when he heard 
the member from Prince George yesterday calling the attention of 
constitutional questions which ought to be considered by themselves; 
could not be supposed to have the most remote connection with the 
resolutions upon the table. Those, said Mr. Mercer, embrace certain 
constitutional questions which ought to be considered by themselves; 
they point out a plan by which the friends of the paper believe a 
repeal of the supposed unconstitutional acts would be most readily 
obtained. 

It was a solemn appeal to the understanding of the committee, 
yet the injuries of France to America, her excesses in Europe, al¬ 
ways magnified and misrepresented by the enemies of freedom in 
every quarter of the world, and the misfortunes of St. Domingo 
had been pressed with considerable force by that same gentleman. 
This effort, Mr. Mercer said, had been practiced with great effect in 
the community. It was scarcely possible to consider the measures of 
our own Government, and candidly to examine their influence upon 
the public happiness, without being subject to the imputation of an 



ALIEN AND SEDITION LAWS. 


21 


undue attachment to a foreign power. He rejoiced in knowing that 
as long as the charge had existed, and as often as it had been re¬ 
peated, not a single instance had been produced throughout America 
by which it could be supported. It was used as the apology for a 
system of measures which could not have been adopted without re¬ 
ceiving the universal disapprobation of all who have a knowledge of 
the principles of the Federal Constitution and of the clear limitation 
of power contained in that instrument. For his part, he did not see 
how a view of the insults offered to America by France could decide 
the merit of the resolutions. He hoped the committee were ready to 
repel the former as well as to consider the latter. To preserve the 
Constitution was to preserve the Union; and to maintain that, upon 
the principles upon which it was originally formed, was to bid de¬ 
fiance to every foreign power whose conduct might be hostile to the 
independence and rights of our country. 

The gentleman from Prince George had told the committee that 
the resolutions introduced by the gentleman from Caroline were cal¬ 
culated to rouse the people to resistance, to excite the people of 
Virginia against the Federal Government. Mr. Mercer did not see 
how such consequences could result from their adoption. They con¬ 
tained nothing more than the sentiments which the people in many 
parts of the State had expressed, and which had been conveyed to 
the legislature in their memorials and resolutions then lying upon the 
table. He would venture to say that an attention to the resolutions 
before the committee would prove that the qualities attempted to 
be attached to them by the gentleman could not be found. He 
begged leave to read the first and second clauses, in which it is de¬ 
clared “ that the general assembly doth unequivocally express a firm 
resolution to maintain and defend the Constitution of the United 
States and the constitution of this State, and that they will support 
the Government of the United States in all measures warranted by 
the former,” and to maintain the Union “ it pledges all its powers.” 
Language less calculated to rouse resentment could not be used,/nor 
were the resolutions addressed to the people, and if they were, Mr. 
Mercer said, they would not have been objected to by him upon that 
ground. If the "people were not to be confided in, we were wretched 
indeed. In whom were we to confide, if not in the people ? In their 
virtue and patriotism were all his hopes placed. The history of 
government had been the history of crime and usurpation. In the 
purity of administration he could not solely confide. The people 
were the best and the only defenders of their liberties; when they 
became ignorant of the proceedings of their own Governments; when 
public virtue should cease to be their ruling principle, their liberties 
would experience the same fate which those of other nations had 
undergone; power would stand in the place of the Constitution. 
He hoped no arguments derived from the probable consequences 
upon the people of adopting the resolutions would prevent the judg¬ 
ment of the committee from being calmly exercised upon them. 

The right of the State government to interfere in the manner 
proposed by the resolutions, Mr. Mercer contended, was clear to his 
mind. He’asked, What were the rights belonging to the State gov¬ 
ernments prior to the existence of the Federal Constitution? They 
were those which belong to all sovereign and independent States. 
They were perfect and complete. The Federal Constitution derived 


22 


ALIEN AND SEDITION LAWS. 


its powers from the people and the States, and could give none but 
what had been previously in the possession of the States or the 
people, and by them delegated to the General Government. It would 
not be said that all power was delegated to the General Government, 
though it had indeed been improperly said, as he should attempt to 
show before he took his seat, that the powers of the Federal Govern¬ 
ment were general. He should attempt to show they were special, and 
that none but what were specially delegated could be exercised. It 
appeared to him that from the operation of the two separate Govern¬ 
ments in the same community there resulted three species of rights to 
be exercised. There were rights which the “Federal Government 
could exclusively exercise, without any interference on the part of the 
State government; there were rights which could be exercised by 
each Government at the same time; and there were rights which 
belonged exclusively to the State government. The latter embraced 
all which had not been delegated in the Federal Constitution to the 
General Government or prohibited to the States by that instrument. 
That portion of power which had been delegated to the Federal 
Government did not affect the sovereignty of the States ” over the 
reserved rights; that sovereignty continued entire and remained as 
to the reserved rights what it had been with respect to all the rights* 
before the Federal Constitution. If the remaining rights are sover¬ 
eign, the States whose sovereignty is invaded by any act of the 
General Government have it as fully in their power to defend and 
protect these as they would have had to defend any of their rights 
if attacked by a foreign power before the General Government had a 
being. The State believed some of its rights had been invaded by 
the late acts of the General Government and proposed a remedy 
whereby to obtain a repeal of them. The plan contained in the reso¬ 
lutions appeared to Mr. Mercer the most advisable. Force was not 
thought of by anyone. The preservation of the Federal Constitu¬ 
tion, the cement of the Union with its original powers, was the object 
of the resolutions. The States were equally concerned, as their 
rights had been equally invaded, and nothing seemed more likely to 
produce a temper in Congress for a repeal than a declaration similar 
to the one before the committee made by a majority of States, or by 
several of them. The States had the power of communicating to¬ 
gether in producing amendments to the Federal Constitution. A 
proposition for this purpose had been presented to the legislature 
during the present session from the State of Massachusetts, and 
would be acted upon before their adjournment. It appeared strange 
that the States might communicate together to amend the Constitu¬ 
tion, and were not permitted to do so, in order to protect the same 
when amended; that they might communicate together when they 
chose to give away their rights, but could not do it w 7 hen their re¬ 
served rights were invaded. The reverse of this Mr. Mercer was 
happy in believing was true. The opinion' contained in the resolu¬ 
tions was coeval with the Constitution itself, and had been main¬ 
tained by the most enlightened commentary tvhich had been produced 
in America upon that instrument (he alluded to a collection of 
papers written under the signature of Publius in the State of New 
York) when the Constitution was under consideration, and generally 
known by the name of the Federalist. The union of talents exer¬ 
cised in the production of this work had justly entitled it to the at- 


ALIEN AND SEDITION LAWS. 


23 


tention of every American who is anxious to know the true meaning 
of the Federal Constitution and the real intent of its powers, and 
though some of its opinions may be erroneous, it was still the best 
authority that could be produced. The time of its being written 
w as extremely favorable to the impartiality of its sentiments, as that 
vindictive party spirit which had now so unhappily extended its 
baneful influence to almost every individual in the community could 
not have affected its supposed authors, one of whose merits had so 
justly been resounded a few days ago from every side of this House. 
This authority, when speaking of the checks which the State govern¬ 
ments would always have upon the General Government, and of the 
little probability of the latter engrossing powers unobserved, uses 
the following strong and decided language: “If the majority (in 
the General Government) should be really disposed to exceed the 
proper limits, the community will be warned of the danger and will 
have an opportunity of taking measures to guard against it. Inde¬ 
pendent of parties in the National Legislature itself, as often as the 
period of discussion arrived, the State legislatures, who will always 
be not only vigilant but suspicious and jealous guardians of the rights 
of the citizens against encroachments from the Federal Government, 
..will constantly have their attention awake to the conduct of the 
National Eulers, and will be ready enough, if anything improper 
appears, to sound the alarm to the people, and not only to be the 
voice but if necessar}^ the arm of their discontent.” (Vol. 1, p. 166.) 
Their sentiments embraced the plan proposed in the resolutions. 
They spoke a language much stronger than any which these would 
be found to contain. We do not wish, said Mr. Mercer, to be the arm 
of the people’s discontent, but to use their voice; the same authority 
has maintained the right of the States to interfere in the manner 
expressed in the resolutions submitted to the committee in terms 
still more applicable. “ It may safely be received as an axiom in our 
political system that the State governments will in all possible con¬ 
tingencies afford complete security against invasion of the public 
liberty by the national authority. Projects of usurpation can not 
be masked under pretenses so likely to escape the penetration of 
select bodies of men as of the people at large. The legislatures will 
have better means of information. They can discover the danger at 
a distance, and possessing all the organs of civil power and con¬ 
fidence of the people they can at once adopt a regular plan of oppo¬ 
sition in which they can combine all the resources of the community. 
They can readily communicate with each other in the different States, 
and unite their common forces for the protection of their common 
liberty.” (Vol. 1, p. 176.) Here, said Mr. Mercer, w r e see the opinion 
of the resolutions so clearly admitted as to be considered a “ politi¬ 
cal axiom in our system.” 

The right of two different States “ to communicate with each 
other ” is here supported by the best defense which the Federal Con¬ 
stitution ever received. Not only this right is defended, but were 
the States to “ adopt a regular plan of opposition, in which they 
should combine all their resources ” this authority, addressed to the 
people at the time the Constitution was under consideration, would 
justify the measure. But no such wish was entertained by the friends 
of the resolutions. Their object in addressing the States is to obtain 
a similar declaration of opinion with respect to several late acts of 


24 


ALIEN AND SEDITION LAWS. 


the General Government which seem to violate some of the most 
invaluable rights secured by the charter of their own existence, and 
thereby to obtain a repeal of measures unconstitutional in their na¬ 
ture and hateful in their tendency, measures so justly obnoxious to 
the people that they would have found few advocates but for the 
vain pretense of their being necessary to defend us against the at¬ 
tempts of France, measures that have divided the community at a 
moment when union of sentiment is ardently to be wished for by 
every friend to the interest of his country. 

The gentleman from Prince George had introduced the opinions 
of a learned writer upon the law of nations, to prove which were 
the rights of aliens, though Mr. Mercer did not believe this class of 
men stood in a foreign country upon the narrow ground in which 
it was attempted to place them; yet he deemed it entirely unneces¬ 
sary to inquire what was the nature and extent of their rights; he 
should contend that the Federal Government possessed no power 
over aliens in time of peace; and therefore whatever power a sover¬ 
eign State could exercise with respect to them, under the general 
law of nations, that power belonged to the State, and not to the 
General Government; the rights of sovereignty did not attach to the 
Federal Government in all their extent ; it was sovereign only with 
respect to the rights which it could exercise exclusively; it was lim¬ 
ited in its operation, and the boundaries of its authority clearly 
ascertained; unless, therefore, this power over aliens should be found 
vested in the General Government by the terms of the Constitution, 
he could not admit it to be derived from implication, or from any 
general clause in that instrument. Implication would lead us into an 
endless discussion. The plain sense and meaning of the Constitution 
should be our guide. In some part of the gentleman’s argument he 
admitted the limited powers of the Constitution; in others he cer¬ 
tainly advanced opinions destructive of that limitation. To show 
that the powers under the Constitution were limited and special, 
Mr. Mercer begged leave to refer to the Constitution itself. In the 
eighth section and first article there was found a special enumera¬ 
tion of powers; most of the great powers of Congress were here par¬ 
ticularly defined. Those which they had a right to exercise, and 
Which were not in this section, were as clearly ascertained in other 
parts of the instrument. Why was this cautious enumeration of 
powers necessary, except to keep Congress within the strict and 
literal meaning of the Constitution and to prevent the assumption 
of power under any general clause? It was intended to prevent them 
from exercising any power but what was given. If opinions cotem- 
poraneous with the original discussion of the Constitution in Vir¬ 
ginia can serve us in ascertaining its true meaning (and they cer¬ 
tainly ought) he would refer gentlemen to the debates in the con¬ 
vention of this State. The opponents of the Constitution were 
apprehensive that by implication or some general phrases Con¬ 
gress might assume powers not intended to be conveyed. The advo¬ 
cates of that paper declared in every day’s debate that these appre¬ 
hensions were without foundation; that the language was so clear 
and its powers so well defined that none could be exercised under it 
by implication or that was not found upon its face. Though the 
evidence of every member who wished the Constitution ratified 
might be produced upon this subject, he would mention the opinions 


ALIEN AND SEDITION LAWS. 


25 


of only two gentlemen belonging to that body. “ Mr. John Marshall 
asked if gentlemen were serious when they asserted that if the State 
governments had power to interfere with the militia it was by impli¬ 
cation. If they were, he asked the committee whether the least 
attention would not show they were mistaken; each government was 
to act according to the powers given it. Would any gentleman deny 
this? He demanded if powers not given were retained by implica¬ 
tion? Could any man say so? Could any man say that this power 
was not retained by the States, as they had not given it away? For 
does not a power remain till it is given away ? The State legislatures 
had power to command and govern their militia before, and have it 
still, undeniably, unless there be something in this Constitution that 
takes it away.” Though the limited powers of the Constitution were 
in this opinion insisted on, there was still higher authority. It 
was the instrument of ratification adopted in the convention of Vir¬ 
ginia, which had been mentioned by the gentleman from Caroline. 
It contained the opinion of the convention, and declares “ that every 
power not granted remains with the people and at their will; that 
therefore no right of any denomination can be canceled, abridged, 
restrained, or modified by the Congress, by the Senate, or House of 
Representatives, acting in any capacity; by the President, or any 
department, or officer of the United States, except in those instances 
in which power is given by the Constitution for those purposes; and 
that, among other essential rights, the liberty of conscience and of 
the press can not be canceled, abridged, restrained, or modified by 
any authority of the United States.” 

We see what was the opinion of the State of Virginia, with re¬ 
spect to the powers of the Constitution, when she was called upon 
to ratify or reject it. But, to remove all doubts, immediately upon 
its going into operation, certain amendments were made, among 
which is the following: “ The powers not delegated to the United 
States by the Constitution, nor prohibited by it to the States, are 
reservedto the States, respectively, or to the people.” This amend¬ 
ment, now a part of the Constitution, ought to fix the real extent 
of the powers of Congress. But the gentleman was not satisfied 
with it because the word “ expressly ” was not to be found there. 
Mr. Mercer hoped the committee would not believe this single term 
essential to ascertain the limitation of power under which Congress 
were bound to act. The words of the amendment were general and 
conveyed a certain meaning. It was that which the face of the Con¬ 
stitution in its original form would warrant, which contemporaneous 
opinions had maintained, and which the convention of Virginia had 
declared to be true. It was impossible for language to be so. explicit 
as to produce a clause that might not be subject to similar objections; 
for, if this term had been used in the amendment, gentlemen might 
have thought it still defective, as others equally strong might have 
been left out. He therefore supposed, as these evidences ascertained 
the powers of the Federal Constitution to be special, and as no power 
over aliens, such as had been exercised by Congress, in the law so 
generally obnoxious had been or, in his opinion, could be shown to 
exist in that body, the law itself must be considered repugnant to 
the Constitution and as invading the rights of the States. 

Many of the remarks of the gentleman from Prince George were 
intended to show the expediency of the law and the inconveniencies 


26 


ALIEN AND SEDITION LAWS. 


that might arise from the want of the power in Congress to pass it. 
Mr. Mercer considered these remarks entirely foreign from the in¬ 
quiry before the committee. The only question ought to be whether 
it was constitutional or not; if it was not, in his opinion, a violation 
of the Constitution, which ought to be held sacred, he declared that 
he would not at this time thus publicly deny its expediency. But 
there would be no period so critical as to justify silence upon a de¬ 
parture from the Constitution. It might be believed that tempo¬ 
rary advantages would result, but permanent evil would be the cer¬ 
tain consequence; for. if there was a maxim in American politics, it 
must be that no law could be expedient which was unconstitutional. 
If it was found inconvenient that Congress had not this power, the 
remedy was plain: perhaps it was the best feature in the instrument 
that pointed out the manner in which itself could be amended. It 
did not consider the present provisions in it as the unalterable effort 
of the best reason, but left them to the operation of time and expe¬ 
rience, by which their defects might be unfolded; when these ap¬ 
peared the remedy was in amending the Constitution, and not in 
usurping powers by constructions so highly forced as to leave its 
meaning entirely uncertain, and to lay the foundation for adminis¬ 
tering the Government upon principles unacknowledged by the 
Constitution and unknown to the States and the people at the time 
of its adoption. But the gentleman had supposed that under the aid 
of necessary implication Congress possessed the power of passing the 
alien friend law, and made his appeal to the last clause in the eighth 
section, which said that Congress should have the power “ to make 
all laws which shall be necessary and proper to carry into execution 
the foregoing powers, and all other powers vested by this Constitu¬ 
tion in the Government of the United States, or in any department, 
or officer thereof.” Mr. Mercer said this clause had been called in 
the convention of Virginia by the opponents of the Constitution the 
sweeping clause. Butdt was evident it referred only to the powers 
expressly “ vested ” in Congress by the Constitution. It could give 
no new power. It would be absurd to suppose that after a special 
enumeration of powers, limited by the terms of the grant, that any 
general expressions could so operate as to produce an increase of 
authority. It had not been shown to his satisfaction how the law 
complained of was “ to carry into execution ” any power vested by 
the Constitution in the Government of the United States or in any 
department or officer thereof.” Under the construction that had been 
given to it, it involved new powers nowhere to be found delegated 
in that instrument; for the true exposition of this clause he would 
now refer to the opinion of the other gentlemen in the convention, to 
whom he alluded. Mr. Madison, speaking of this clause, said, “It 
is only superfluity. If that latitude of construction which he (Mr. 
Henry) contends for were to take place with respect to the sweeping 
clause, tliere would be room for those horrors. But it gives no sup¬ 
plementary power. It enables them to execute the delegated powers. 
It is at most explanatory, for when any power is given its delegation 
necessarily involves authority to make laws to execute it.” 

“ With respect to the supposed operation of what was denominated 
the sweeping clause the gentleman, he said, was mistaken, for it only 
extended to the enumerated powers. Should Congress attempt to 
extend it to any power not enumerated, it would not be warranted 


ALIEN AND SEDITION LAWS. 


27 


by the clause.” This opinion must be considered as the just one. 
It had been maintained oy the writer which he had cited, the Fed¬ 
eralist. The Constitution itself warranted the truth of it, but there 
ought to be no doubt after reading the amendment which had already 
been stated. If the power exercised in the law was not enumerated, 
neither this nor any other general clause could give it to Congress. 

The gentleman had called upon the committee to show in what 
part of the Constitution the powers of Congress with respect to 
foreign nations were stated. Mr. Mercer hoped he did not mistake 
his remark, for it was a very important one. If it was true that these 
great powers, certainty exercised by Congress, were not vested in 
that body by express terms, but were derived to them by construc¬ 
tion or implication, the deduction that would naturally flow from 
such a truth would be fatal to the Constitution. It was, if powers 
so great could be used, without being specialty delegated, it showed 
the extent of implication; and under its operation, other powers 
equally important, and among them that which Congress had exer¬ 
cised over aliens, might be assumed, but such a position is destructive 
to the Constitution. Mr. Mercer rejoiced in Relieving it could not be 
supported by any argument drawn from the powers of Congress over 
foreign relations; for none were more expressly delegated than these; 
he begged leave again to refer to that instrument, which should be 
our constant guide. In the tenth section of first article it is declared 
that “no State shall enter into any treaty, alliance, or confedera¬ 
tion.” And that “no State shall, without the consent of Congress, 
enter into any agreement or compact with another State, or with a 
foreign power, or engage in war, etc.” This proved that all power 
with respect to foreign connections was taken from the States. It 
was not among their reserved rights; nor could they exercise it con¬ 
jointly with Congress, because they were deprived of it by negative 
words in the Constitution. It belonged exclusively to the General 
Government. To show this he read the following clauses in the 
Constitution: “ The Congress shall have power to regulate commerce 
with foreign nations.” “ To establish an uniform rule of naturaliza¬ 
tion.” “ To declare war and grant letters of marque and reprisal.” 
When speaking of the powers of the President it says: “He shall 
have power, by and with the advice and consent of the Senate, to 
make treaties, etc.” “And shall nominate, and by and with the 
advice and consent of the Senate, shall appoint ambassadors, other 
public ministers, and consuls.” “He shall receive ambassadors and 
other public ministers.” These clauses embrace all the great objects 
of a foreign intercourse; they make it clear that the powers of the 
General Government upon this subject are expressly delegated and 
depend not upon nice constructions or implication. 

In these remarks, Mr. Mercer said, he had attempted to show that 
the Federal Constitution was a limited grant of power; that the; 
power which Congress had exercised in the case of the alien law; 
had been nowhere delegated to them by that instrument and ought 
not to be considered within their reach, from implication. That if 
Congress did not constitutionally possess the power oyer aliens 
which they had exercised, the exercising it was an invasion of the 
sovereignty of the States, and whenever this took place the States 
had a right to communicate with each other in the manner con¬ 
templated by the resolutions now before the committee. But if he 


28 


ALIEN AND SEDITION LAWS. 


had been convinced that this power was vested in Congress, the 
manner in which they had used it was equally repugnant to the. Con¬ 
stitution and subversive of some of the most valuable provisions 
contained in it. It was as necessary they should preserve the dis¬ 
tribution of powers actually delegated according to the mode pre¬ 
scribed in the Constitution as it was for them not to assume powers 
which had never been delegated. It was as necessary that one depart¬ 
ment of the Government should not be permitted to use authority, 
to the constitutional exercise of which only the three branches were 
competent, as that the whole should assume powers which neither 
had a right to exercise. The objections to this act had been so often 
urged, and the public attention so much excited, that it would be 
useless to dwell upon them at this time; he would briefly mention 
the objections which he felt to the act, even if Congress had the power 
•over aliens which they had exercised. His first was, that it placed in 
the hands of the President an union of authority which bv the prin¬ 
ciples of free government should always be kept separate and distinct. 
It gave him the right to exercise legislative, judicial, and executive 
powers, which were intended to be kept apart by the Constitution 
and never could be united in the same individual or in the same de¬ 
partment of government without producing a real despotism. 

To prove that legislative power was vested in the President by this 
law, he asked what was the distinguishing characteristic of that 
power, or the highest act that could be performed by it. It was 
to prescribe a rule of conduct, commanding what was right and pro¬ 
hibiting what was wrong. What was the rule of conduct prescribed 
to the alien by this law ? What was he commanded to do and what 
to avoid? There was no rule of conduct laid down in the law. There 
was no crime defined. Even the President was not required to say 
what the alien’s duty should be. Everything was confined within his 
own breast. The class of men intended to be involved under this 
law could not know they had sinned until the punishment was upon 
them. If he then prescribed the rule of conduct for aliens, he also 
had the right under the law to judge when that rule was violated; 
he was the executive department of the Government constitutionally, 
and the duties of legislating and judging were annexed to his new 
office by this law. The second objection was that it destroyed the 
trial by jury, which he considered was extended to all persons by the 
Constitution. The terms were as general and as comprehensive as 
language could make them. He begged leave to refer to them. “ The 
trial of all crimes except in cases of impeachment shall be by jury.” 
“No person shall be held to answer for a capital or otherwise in¬ 
famous crime unless on a presentment or indictment by a grand 
jury, etc.” “Nor be deprived of life, liberty, or property without 
due process of law.” “ In all criminal prosecutions the accused shall 
enjoy the right to a speedy and public trial by an impartial jury, 
etc.”; “be informed of the nature and cause of the accusation; to be 
confronted with the witnesses against him; to have compulsory 
process for obtaining witnesses in his favor; and to have the assist¬ 
ance of counsel for his defense.” These just, humane, and most in¬ 
valuable of all privileges were taken from the alien; his “ liberty ” 
was to be suspended without any “ crime ” being defined which he 
ought to avoid; without any “trial by jury,” of which “no person” 
is to be deprived under the Constitution; there was no “information 


ALIEN AND SEDITION LAWS. 


29 


of the nature and cause of the accusation” to be communicated to 
him; he was “to be confronted with no witnesses; counsel could not 
be heard in his favor”; his liberty depended upon the mercy and 
justice of an individual. The third object was that it virtually de¬ 
stroyed the right of the States under the ninth section of the first 
article of the Constitution; for though the States might admit the 
“ migration or importation ” of such persons as they might think 
proper prior to a certain period, it was to little purpose if the Presi¬ 
dent, influenced by his own suspicions, could send them away. The 
argument of the gentleman from Prince George seemed to relinquish 
the point. He observed that the law would have been unconstitu¬ 
tional if it had been a permanent one, passed prior to the year 1808, 
since it would then defeat this section. Mr. Mercer said he could 
not see how its being temporary would prevent the same effect being 
produced, for if the power of Congress could pass such a law for 
two years it might extend to the year 1808. If they possessed the 
right to originate the law and keep it in force for any term, however 
short, they could certainly defeat the ninth section altogether, be¬ 
cause as often as the period arrived when this temporary law was to 
expire they had only to pass it again for a limited time, and by thus 
keeping it temporary bring about the year 1808, after which the gen¬ 
tleman supposed the right would be in Congress. The law being 
only a temporary one, therefore, could not possibly prove it to be 
constitutional. 

Much had been said by the member from Prince George respecting 
the conduct of aliens and the dangers that were to be apprehended 
from them. Mr. Mercer did not suppose that the friends of the 
resolutions felt it their duty to defend or to blame that conduct, 
whatever it might have been, without having ever understood any 
acts to have been performed by that class of men by which American 
rights had suffered. The statement of the gentleman might be true 
and still it did not affect the question before the committee. The 
object of the resolutions was not to defend aliens, but to protect the 
Constitution, which had been violated in the case of these men. If 
under the intention of removing dangerous aliens the principles of 
that instrument would be openly violated and some of its wisest, 
provisions set aside, the same might take place with respect to native 
citizens. If it was infringed upon in one instance, the same might 
happen in smy other. 

With respect to the sedition law, as it was generally called, Mr. 
Mercer said he would not take up the time of the committee in mak¬ 
ing any observations upon it. He was willing to let the proof of its 
unconstitutional quality rest upon the argument of the gentleman 
from Caroline. He would only say it was odious in his sight. It 
was certainly unnecessary, unless the General Government had reason 
to doubt the virtue and patriotism of the people. 

If that Government would pursue measures compatible with the 
Constitution and calculated to preserve the country in a state of 
peace, and not hasten that unhappy crisis with which we were 
threatened, when war should be found unavoidable, every citizen 
would be ready to defend his country’s rights against the attempts 
of any nation upon earth. Mr. Mercer believed if it hod not been 
for the unfortunate difference between America and France there 
would have been few voices ready to approve of several of the late 


30 


ALIEN AND SEDITION LAWS. 


acts of the General Government. That difference had been made 
the pretext for exercising power in a manner which two years past 
would have been universally condemned. He hoped the committee 
would distinguish between the aggressions of France and the oper¬ 
ations of our own Government. The alarm of foreign invasion 
created by Government was not a modern thing. When power 
wished to encroach, the same had been excited in every age and 
country. At this time two instances occurred to him. When 
Charles VII of France wished to establish a standing army in that 
■country he told the people it was necessary to be ready against in¬ 
vasions from England. But when all danger was removed the army 
was kept up and afflicted the nation for centuries. Charles was the 
first king of France who levied a tax w.thout the consent of the 
States general. When Cardinal Ximenes introduced a standing 
army into Spain the ne f • ■ ( necessary to protect 

them against the invasion of the Moors from Africa; but when these 
were expelled, the country and their powers destroyed, the army was 
continued. History afforded many similar instances. It proved 
that the moment for power to enlarge its privileges was that of 
public agitation and alarm; he would make no inferences with a 
view of applying them to the General Government. Every gentle¬ 
man in the committee might make his own deductions. Mr. Mercer 
concluded by observing that he should vote for the resolutions unless 
arguments could be offered to prove to his satisfaction that the acts 
complained of were constitutional. 

Mr. Pope arose next and made several general observations in 
answer to those ’which had fallen from Mr. George K. Taylor, re¬ 
specting the necessity of deliberation before decision in favor of the 
alien law, and concerning Volney and Talleyrand. He then pro¬ 
ceeded to observe that, as to Talleyrand, the gentleman from Prince 
George was not correct as to what he had related of him; but besides, 
that he had not related the whole story. He had represented him 
to be a great rascal, indeed, and a very great rascal he himself would 
acknowledge he was; but that he would still give them a further 
account of that Mr. Talleyrand, as true as that which the gentle¬ 
man from Prince George had related. He then proceeded to men¬ 
tion that in the course of Talleyrand’s stay in America he had been 
for some time much countenanced by some of the conspicuous char¬ 
acters in New York, of whom he particularly mentioned the gentle¬ 
man who never broke a command, who never disturbed the quiet or 
repose of any family;.that gentleman who inviolably kept the sacred 
vow he made to his bride on the day of marriage. But as soon as 
these gentlemen discovered his political opinions to be different from 
what they supposed them to be when they admitted him into their 
society they instantly broke off all communication with him and ever 
afterwards reviled and persecuted him. He made some observations 
respecting Volney, and then asked how the gentleman from Prince 
George had found out the story which he had related of Volney, 
when Porcupine or Goodloe Harper never could. Perhaps he had 
learned it from Billy IVilcox; and who was he? A mere automaton. 
He could say this; he could say that—anything or nothing. He 
was directed altogether by the breaker of the matrimonial vow. A 
gentleman from Prince George had spoken of Frenchmen sneaking 
away. But sneaking as they were, he said, he believed all Europe 


ALIEN AND SEDITION LAWS. 


31 


sneaked before them. However, he said, he was no champion for 
the French, any more than for the British. He thought we had no 
business with either of them. He then spoke of British aggressions 
upon our commerce. But these, he said, w r ere not felt by the Execu¬ 
tive of the United States, as well as many of its citizens. He then 
complimented Mr. George K. Taylor upon his talent in moving the 
passions. He had exercised that talent so effectually a session or 
two before as to draw tears from the members of that house (allud¬ 
ing to the speech delivered in favor of the new criminal law), and 
he himsef must confess, indeed, that the gentleman had, on the sub¬ 
ject then before them, dealt more in pathos than in argument. He 
then asked why the gentleman, when reviling Genet, did not say 
something of Liston, too. He believed that he (Liston) had done us 
as much harm as ever Genet did. As a proof, he instanced the Span¬ 
ish transaction. But when that was stated to that great man, Mr. 
Pickering, he said that we were to pay no kind of credit to it, for 
he was satisfied that our good allies, the British, did not intend to 
injure us. The gentleman from Prince George, he said, had intro¬ 
duced a damsel, and that was the damsel of liberty. When he had 
done so, he (Mr. Pope), cold as his blood was, confessed that he was 
seized with an ecstasy. 

But when at the same time the gentleman would not permit that 
damsel to remain within these walls, he acknowledged that his feel¬ 
ings were very much wounded indeed. For he (Mr. Pope) was fond 
of all damsels, but particularly so of the damsel of Liberty. And if 
he were so cold as his blood was, what might they not expect from 
that young athletic gentleman, whose warmth of blood was so 
plainly visible. The same gentleman, he said, had also dwelt upon 
the Santo Domingo horrors. The alien law, he (Mr. Pope) said, 
had not removed them. He believed all the emigrants from that 
place were aristocrats; but thej^ had not been removed. The gentle¬ 
man had also mentioned the determinations of the other States. As 
well as he could recollect, he said, he conceived that such determina¬ 
tions extended only to an approbation of the measures of the Execu¬ 
tive in regard to the negotiation with France. But be they what 
they would, we were not bound to follow their example. Kentucky 
had differed from them. He asked who had knocked at the doors of 
jthe aristocratic Senate of the United States but Virginia? She 
had been the chief means of opening them. In that instance, then, 
she had weight. He wished, therefore, that on this occasion they 
should do what they thought right. That, too, might probably have 
weight. If it should not, they would at least discharge their duty. 
At any rate, he thought the determination according to the resolu¬ 
tions which they were about to make, would not lead to war, as was 
apprehended; and, therefore, they might safely agree to pass them. 
However, he said, he did not feel himself so rigidly attached to the 
resolutions but that he would be willing to agree to any modifica¬ 
tion of them to accommodate gentlemen, provided the substance of 
them should be so retained as to go to declare the laws of Congress 
under their consideration unconstitutional. 

Mr. John Allen arose next, and said he was not accustomed to 
make apologies for anything he wished to say in this House, nor 
should he do so in the present case; the subject was of too much im¬ 
portance to require any. And, notwithstanding his ill state of 


32 


ALIEN AND SEDITION LAWS. 


health, he rose to give his feeble aid in favor of the wounded daugh¬ 
ter of Liberty. In deciding on a constitutional question he did not 
expect that the understanding was to be banished and the passions 
only left to be their guide. But, he found that the gentleman from 
Prince George, through the whole of his lengthy harangue, relied 
solely on the force and effect of the latter. That gentleman in¬ 
formed them that he should confine his observations to the alien law 
and attempt to prove it constitutional. How did he do this? By 
describing, in the most terrific colors, the conduct of the French to¬ 
ward us and other nations; and then asserting that the alien law 
was made to protect us from the French. But, before the gentleman 
indulged himself in his description of the cruelties and aggressions 
committed by the French, he should have proved that this law re¬ 
lated only to that nation. But, it clearly was not so. It extends 
to all nations alike and without discrimination. The law need only 
be read to prove the truth of this assertion. 

Unless, then, it appeared that we were threatened with, or had 
danger to apprehend from, all the nations on earth, that law couid 
not be justified, even by the gentleman’s own arguments. The gen¬ 
tleman had further observed that if this law had been permanent 
it would be unconstitutional; but if temporary it would not. Mr. 
Allen said, in his opinion, there was no difference between the cases. 
He could not discover Iioay a clause in a law declaring that it should 
expire at a particular period could make the law constitutional. But 
the gentleman did not appear to rely much on that argument, only 
that it gave him an opportunity of returning again to his favorite 
theme, a description of French cruelties. But, said the gentleman, 
the admission of aliens in a country was a matter of favor and not 
of right. But, Mr. Allen averred, that the admission of alien 
friends into a country was not a matter of favor, and even if it were, 
when they were in a country, they were entitled to certain rights 
which he enumerated, and, which, he said, were derived to them 
from the laws of nature, nations, and humanity. The gentleman 
admitted that an alien could not be deprived, of life or property 
without a trial, and that by jury. If so, surely they should not be 
deprived of their liberty without trial, and that, too, by jury. But, 
perhaps, in these modern days, life and property only are to be held 
sacred, while liberty is to be exposed to the whim or caprice of a 
single man. If, indeed, this be the case and liberty is considered of 
less value than property, then the argument of the gentleman should 
have some weight. But we are taught by the Constitution to rank 
liberty next to life. If, therefore, an alien can not be deprived of 
his property without trial by jury, he certainly should not be de¬ 
prived of his liberty without the same kind of trial. On that ac¬ 
count, then, he said, the law was apparently unconstitutional. But, 
suppose, he said, it was absolutely necessary to provide by law for 
sending aliens out of this country, who had the power to do so? 
Congress or the States? 

He declared that the States had. He read the first clause of the 
ninth section respecting the migration of persons prior to the year 
ISOS as proof of the assertion. But even if Congress had such a 
power they had no right to vest it in the President, for reasons that 
had already been given and that were too apparent not to be under¬ 
stood. He then proceeded to point out the danger of placing too 


ALIEN AND SEDITION LAWS. 


33 


much power in the hands of the Executive. He stated instances of 
the unhappy effects proceeding from it in Britain, and was afraid 
we had much danger to apprehend from a desire in Congress to 
increase Executive power. This law vesting in the President such 
enormous powers, the gentleman from Prince George observed, was 
made for the purpose of getting rid of two individuals, and as they 
had sneaked out of the country there was no further necessity for the 
law. To what extremity, said Mr. Allen, must the United States 
have been reduced. How must they be degraded, when we are in¬ 
formed that it was necessary to make the President absolute tyrant 
over perhaps a million of people to get rid of two men. 

But it was urged as an objection to the adoption of the resolutions 
under consideration that the people were the proper tribunal to decide 
upon the constitutionality of the laws, and that they would shortly 
decide the question at the next election. Mr. Allen contended that 
was not a proper mode for the decision of such a question, for that the 
people often voted from personal or local attachments and that they 
were not always apprised of the opinions of the different candidates, 
and he instanced his own district as proof of the latter assertion. 
But, he said, if this was a proper mode of deciding this question he 
believed there was no doubt how the people would determine, and 
this house, by the reelection of a Senator of the United States the 
other day, had alread} r decided the question. Mr. Allen then con¬ 
cluded by making some general observations on the dangerous conse¬ 
quences of deriving powers from implication, and said that he at 
that moment experienced too much bodily pain to be able to proceed 
further. 

On motion of Mr. Magill the committee then rose, the chairman 
reported progress, asked, and had leave to sit again. 


In the House of Delegates, 

Monday , December 17 , 1798. 

The house resolved itself into a committee of the whole house on 
the state of the Commonwealth, Mr. Breekenriclge in the chair, when 
Mr. John Taylor’s resolutions being still under consideration, 

Mr. Barbour arose and observed that, being a young man, he did 
not intend to have troubled the committee with any remarks upon the 
subject under discussion, but the solicitude he experienced had im¬ 
pelled him forward. He observed that the moment on which he arose 
might be called the first of his political existence, and yet in that 
moment he was called upon to decide a question in which not only 
his own fate as a politician but the welfare of his country was mate¬ 
rially involved. Mr. Barbour asked what must be the sensations of 
a young man the first instant he stepped on the theater of public 
life to be called on to act a part in which such important consequences 
are implicated. He observed he experienced those sensations to an 
eminent degree, but having formed a rule by which he meant to be 
governed in his political career which was to pursue the line of con¬ 
duct his judgment dictated as the most proper, he would announce to 
the committee, and through the committee to the world, the motives 
which actuated him to give the vote he was about to pronounce, which 

•52068—S. Doc. 873, 62-2-3 



34 


ALIEN AND SEDITION LAWS. 


would be in favor of the adoption of the resolutions. He observed it 
had been remarked by every gentleman, whether pro or con, that the 
event of the present discussion was important. He begged leave to 
add his testimony likewise to the importance of the subject, and he 
believed he should not use language too strong was he to assert that 
in the proceedings of this legislature might be read the destinies of 
America, for issue was joined between monarchical principles on the 
one hand and republican on the other, and they were the grand 
inquest who were to determine the controversy. For should so im¬ 
portant a State as Virginia sanction the measures complained of in 
the resolutions (which she would do if the resolutions should be 
rejected) it would become a stepstone to further usurpation, until 
those great rights which are guaranteed by nature and the Constitu¬ 
tion will be destroyed one by one and a monarchy erected upon the 
ruins thereof. But, on the contrary, if she discountenanced those 
measures (as she would do by the adoption of the resolutions) and 
could obtain the cooperation of the sister States it might overawe 
tyranny, for tyranny in embryo was timid. 

He asked, could it be necessary, to conjure the members of the 
committee to be tremulously alive to the importance of the subject, 
and viewing it free from prepossessions, should give that opinion 
which would redound most to their own fame and eventuate in the 
welfare of their country. He then read the resolutions, and observed 
the gentleman from Prince George had remarked that those resolu¬ 
tions invited the people to insurrection and to arms. But Mr. Bar¬ 
bour said if he could conceive that the consequence foretold would 
grow out of the measure, he would become its bitterest enemy, for he 
deprecated intestine commotion, civil war, and bloodshed as the most 
direful evils which could befall a country except slavery. A resort 
to arms was the last appeal of an oppressed, an injured Nation, and 
was never made but when public servants converted themselves by 
usurpation into masters and destroyed rights once participated; and 
then it was justifiable. But, he observed, the idea of that same 
gentleman was in concert, as would appear by reference to a leading 
feature in the resolutions, which was their being addressed not to the 
people, but to the sister States, praying in a pacific way their co¬ 
operation in arresting the tendency and effect of unconstitutional 
laws. He observed it had been said by some gentlemen that they 
admitted the unconstitutionality of the laws, and yet they would 
vote against the resolutions, for that the subject exclusively belonged 
to the people, and if their servants had violated their trust they 
ought to substitute others. In answer to this, Mr. Barbour observed 
that doctrine like this was pregnant with every mischief. For once 
admit, said he, that the States have no check, no constitutional bar¬ 
rier against the encroachment of the General Government, we should 
thereby lessen that weight to which the State governments are 
entitled in the political machine, which in America is a complex one. 
We should thereby destroy those checks and balances which are the 
sine qua non of their mutual existence and welfare. And the conse¬ 
quence then would be that instead of harmony and symmetry which 
has hitherto prevailed, chaos, confusion, and all the evils incident 
to that situation would be the inevitable result. In theory this doc¬ 
trine is alarming, but fortunately for the liberties of America, when 
it comes to be tried by the rules of reason and sound argument it is 


ALIEN AND SEDITION LAWS. 


35 


found monstrous and absurd, and therefore its advocates must be 
few. He observed that he would undertake to demonstrate that, 
although the people possessed the right of excluding those who advo¬ 
cated the obnoxious'measures, and he hoped would exercise the right, 
yet the State legislatures not only had a concurrent right, but were 
equally bound to exercise that right. He asked who were the parties 
that formed the compact. Were they not the people and the States? 
If it had been formed exclusively by the people, he supposed a ma¬ 
jority of the people would have been sufficient to have confirmed 
the compact. But what was the fact ? Did not the Constitution 
require that the consent of nine of the States shall be an indispen¬ 
sable preliminary to its adoption? Again, did it not permit three- 
fourths of the legislatures to alter the Constitution Avithout the inter¬ 
vention of the people? And can not the States admit new parties 
to the compact, to wit, by the erection of new States? Again, are 
not the State legislatures to the Senate what the people are to the 
Representatives? And if the latter possess the power of censure and 
discharge (which as yet no gentleman would deny), must it not 
follow bv a parity of reasoning that the former possess the same 
power relative to the body elected by themselves? Again, the Presi¬ 
dent is elected by electors, who represent the States as well as the 
people; for the number of electors are not in proportion to the num¬ 
ber of the people alone, but the States as well as the people. For 
example, the State of Delaware has 3 electors, when it is entitled to 
but 1 Representative; whereas Virginia has only 21 electors, when 
she is entitled to 19 Representatives. It must follow, then, as an 
incontrovertible deduction that the States are parties to the compact ; 
and being parties, if the compact was violated (as it was violated) 
the States have the right and ought to exercise it to declare that 
those proceedings which are an infringement upon the Constitution 
are not binding. The State legislatures being the immediate repre¬ 
sentatives of the people, and consequently the immediate guardians 
of their rights, should sound the tocsin of alarm at the approach of 
danger and should be the arm of the people to repel every invasion. 
If, said he, the alien and sedition laws are unconstitutional they are 
not law, and of course of no force. For what are the necessary 
ingredients to the Constitution and the force of a law? It was not 
only essential they should receive the sanction of the constituted 
authorities, but the act itself must be in unison with the Constitution, 
for if an agent should transcend his limited authorities he would be 
guilty of usurpation; and all usurpation being founded in wrong, 
whatever has that only for its support must be void. This being 
the case, the legislature would be guilty of misprision of treason 
against the liberties of their constituents if they did not denounce 
the violations offered to the Constitution through the medium of 
the alien and sedition laws. 

He observed, it remained for him to show, that the laws alluded 
to were unconstitutional. The worthy gentleman from Caroline 
having proven in a clear and perspicuous manner the unconstitution¬ 
ality of the sedition law and delineated in masterly and eloquent 
language the consequences of that act which is entitled to the in¬ 
famous preeminence in the scale of guilt, and as no gentleman had 
undertaken its defense, Mr. Barbour said that his remarks would be 
confined to the alien law alone. And in order to ascertain whether 


36 


ALIEN AND SEDITION LAWS. 


this law was constitutional or not, reference must be had to the 
nature of the Constitution. The Government must be either limited 
or unlimited. If the latter, it was omnipotent, like the Parliament 
of Great Britain, and was adequate to the purpose of passing any 
law, however impolitic, absurd, or dangerous it might be to the lib¬ 
erties of the people. But if it were limited (which was a principle 
he supposed so clear that to consume the time of the committee in 
proving it would be a supererogation), it would remain then to be 
inquired whether in the limited power granted a power be given to 
pass a law like the one now under discussion or not. He observed 
that to comprehend the nature of the Constitution of the General 
Government it might not be unimportant to recur to the political 
situation of America prior to the adoption of the Federal Govern¬ 
ment. In 1776 the 13 United States, then the Colonies of America, 
after having been lacerated to the midriff by the vulture fangs of 
British persecution, threw off their colonial subjugation and took 
a stand amongst the nations of the earth. At this time there were 
13 independent sovereignties tied together by the feeble bands of 
the Articles of Confederation. So long as the pressure of external 
danger was felt so long the bond of union was found sufficiently 
strong. So long as all jealousies and rivalships were sacrificed on 
the altar of public good the defects of that system were in some 
measure concealed. But so soon as the pressure of foreign invasion 
was removed so soon it was discovered that the system of union 
created by the confederation was inadequate to the sublime purposes 
for which it was intended. The people of America saw and deplored 
the situation with which they were menaced; and the Virginia Legis¬ 
lature, sensible of the jeopardy to which their well-earned liberties 
were exposed, were the first to recommend a resolution in the com¬ 
pact by which the States were connected—notwithstanding the sense¬ 
less yell and malicious calumnies with which certain hireling papers 
to the East teem of a disposition in this State to shake off the Union. 
Influenced by this spirit, the convention met in the year 1786 in 
Annapolis, but broke up without doing anything effectual. In the 
year 1787 the convention which met in Philadelphia gave birth to 
'the Federal Constitution. The object of the General Government, 
ex vi termini, must be for general purposes, and the powers necessary 
to carry those purposes into effect were expressly defined; and it 
was the sense of the American people, cotemperaneous with the adop¬ 
tion of the General Government, when the attributes and qualities 
of that Government were best understood, that all powers not 
granted were retained; as an evidence of which let reference be 
had, he said, to the twelfth amendment of the Federal Constitution, 
which expressly declares that all powers not granted to the General 
Government were retained to the States or the people, respectively. 
Tt was then urged (with propriety, too, as the sequel has evinced) 
that the Federal Constitution was defective in consequence of its 
wanting a bill of rights. It was answered by the advocates of the 
Constitution (amongst whom was Mr. Lee, of Westmoreland, who 
now displayed great zeal in support of administration and conse¬ 
quently amongst the friends of administration should have some 
weight) that the Constitution was better without than with a bill 
of rights; for if there had been (Mr. Lee observed) an enumeration 
of particular rights with the friends to forced construction there 


ALIEN AND SEDITION LAWS. 


37 


would have been a claim, as residuary legatee, to all rights not ex¬ 
pressly retained; but in the present Government there were only 
particular powers granted, and consequently all powers not granted 
are retained to the States or the people, respectively—a doctrine 
Which he (Mr. Barbour) observed before had been recognized in the 
twelfth amendment to the Constitution. Mr. Barbour then observed 
that he having shown that the Government could exercise no power 
but what was specifically enumerated, it behooved the authors or 
supporters of the law to show that the power of making a law like 
the one which was now the subject of discussion was designated in 
the list of specific powers. If they could not show it it must follow 
it was a usurpation of power not warranted by the Constitution. To 
ascertain the truth upon this subject, which in argument was de¬ 
sirable, let reference be had, he said, to the section which enumerates 
the powers that Congress can legally exercise (being the eighth sec¬ 
tion of the first article). Any power which Congress should exer¬ 
cise not warranted by that character would be a usurpation upon 
the rights of the States or the people, and in proportion to the extent 
of the usurpation should be the execration of every friend to repub¬ 
lican government and the liberties of the people. 

It would be discovered, when reference was had to the section of 
the Constitution alluded to above, that no power to make an alien 
law is granted. When gentlemen are called upon to justify the 
assumption of power, they desert the ground of the law being 
justifiable agreeble to the letter of the Constitution and take refuge 
behind the sanctuary of implication. Mr. Barbour then described 
the danger of implied power in a warm and animated manner. He 
begged the committee to be alive to the mischief with which this 
doctrine was teeming. If, said he, we once abandon the high road 
which the wisdom of our ancestors has established, and in which the 
constituted authorities were directed to walk; if we once abandon 
that palladium of civil liberty our rights will be immediately gone. 
No, said he, let us, if our servants turn either to the right or to the 
left, smite them as of old was Balaam’s ass, so that they turn not 
away from the path to which, if we mean to keep our liberties, they 
should adhere with undeviating regularity. Promulge it once, said 
he, to the world, or rather to Congress, that they have a right to 
exercise powers by implication, and it requires not the aid of proph¬ 
ecy to foretell, if we may judge of the future by the past, that those 
great and inestimable rights which flow from nature and are the gift 
of nature’s God will be assassinated by the rude and unfeeling hand 
of ferocious despotism. That body will not only pass alien and 
sedition laws, which they have had the audacity to pass in the tenth 
year of the Constitution, but will go on to increase the already black 
catalogue of crimes, new fangled, and existing only in the brain of 
suspicion and political villainy, till some of the best patriots are 
sacrificed, and the purest blood of which America boasts streams. 
The friends of liberty will be sacrificed as so many obstacles to their 
ambitious designs, and despotism, covered with the gore of patriots, 
will stalk with impunity amongst us. But, Mr. Barbour said, he had 
determined to pursue the gentleman from Prince George through 
all the meanders and twistings of his argument and expose its fallacy 
and danger; that there should be no ground upon which the sup¬ 
porters of this law should find rest; like the dove of old, they should 


38 


ALIEN AND SEDITION LAWS. 


be compelled to take refuge in the ark, which by the resolutions was 
prepared for their reception. For this reason, for the sake of argu¬ 
ment, but for that only (God forbid it should be for anything else), 
he would admit the principle that Congress might legislate by impli¬ 
cation, yet it could have no power of the kind which appears to have 
been exercised in making the alien law. But before he went into that 
subject it was necessary he should take notice of some miscellaneous 
remarks which had fallen from the gentleman from Prince George. 
That gentleman had observed that Congress had passed the law, and 
that we should hesitate before we declared it unconstitutional; for 
if it was unconstitutional the people ought to resort to arms. In 
answer to this, Mr. Barbour observed that the circumstance of Con¬ 
gress having passed it, if it was intrinsically unconstitutional, did 
not render the law less so; and although he had a high respect for 
some of the Members of Congress in both Houses, on account of their 
talents and integrity, yet some of the warmest advocates of this law 
and executive measures were suspicious characters from their situ¬ 
ation in life, which was so desperate as not to be endangered, but, on 
the contrary, they might try to be bettered by revolution and con¬ 
volution. Political profligacy in a republican government sooner or 
later will meet its fate, the execration of an injured people; but by 
a change the Judases of American liberty will aspire to the acme of 
opulence in the sunshine of monarchy, the most genial climate for 
the growth of everything which is abhorrent to republican simplicity 
and virtue. But, he said, if he had the highest estimation both for their 
virtue and wisdom, he should exercise his own judgment, with which 
he had been blessed by the God of nature, and if that condemned it 
he should not hesitate to declare in strong terms his disapprobation. 
He trusted, he said, that the American people were not prepared for 
unconditional submission and nonresistance. A doc.trine like this 
would have disgraced the last century and was fit only for the miser¬ 
able regions of the East, where ignorance, superstition, and despotism 
their sad dominion keep. He trusted that the American people did 
not intend to attach to servants the attribute of infallibility; if not, 
the adoption of the law under discussion by Congress would have 
no weight upon the mind of the committee. The gentleman urged 
that we should hesitate before a declaration was made that the law 
was unconstitutional. Mr. Barbour asked what had been the con¬ 
duct of the committee. Had they rushed precipitately into a deter¬ 
mination ? On the contrary, had not the subject been discussed for 
several days, and would it not continue to be discussed for several 
days more ? Had not every gentleman an opportunity of delivering 
his ideas upon the subject? And had not a depth of judgment and 
a brilliancy of talent been displayed in the discussion, which would 
do honor to any deliberative body? In short, had not the subject 
been treated in a manner suited to its importance? What more, (men. 
could be asked ? 

The gentleman from Prince George was for the people’s rising en 
masse if the law was unconstitutional. For his part, Mr. Barbour 
said, he was for using no violence. It was the peculiar blessing of 
the American people to have redress within their reach by constitu¬ 
tional and peaceful means. He was for giving Congress an oppor¬ 
tunity of repealing those obnoxious laws complained of in the resolu- 


ALIEN AND SEDITION LAWS. 


39 


tions and thereby effacing from the American character a stain 
which, if not soon wiped off, would become indelible. 

The gentleman from Prince George had further said that ail the 
other States in the Union had met and adjourned and tacitly acqui¬ 
esced in the measures which had been pursued by the General Gov¬ 
ernment. The gentleman was incorrect in point of fact. The State 
of Kentucky had, in language as bold as could be used, expressed 
their execration of some of the leading measures of the General Gov¬ 
ernment adopted at their last session, but upon none more particu¬ 
larly than upon the laws complained of in the resolutions. The 
State of Tennessee was in such a situation as to require or authorize 
the governor to convene an extra session. About what could it be 
if it was not the uneasiness experienced bv the people of that State 
at the usurpation of the General Government? In respect to the 
other States being not adverse, he would not contradict the gentle¬ 
man. But what weight would this remark have upon the committee? 
Was the conduct of the other States to be the criterion whereby to 
govern this State? He trusted not. He hoped that so long as this 
State kept its independence it would think and act for itself. Vir¬ 
ginia had been always forward in repelling usurpation of every kind, 
and he trusted she never would forfeit the reputation she had ac¬ 
quired, but always would be the champion of the rights and liberties 
of America. But, he said, having answered the desultory remarks 
of the gentleman from Prince George, he would return to the doctrine 
of implication. That gentleman read the preamble to the Federal 
Constitution to prove that as the liberty and general welfare of the 
whole were the object of the Constitution Congress had a right to do 
anything which might be necessary, in their opinion, to effect that 
purpose. The inference, Mr. Barbour observed, which had been 
deduced was by no means tenable. To assert that the preamble to 
the Constitution should alter or subvert the Constitution or that the 
preamble gave powers not given in the Constitution was in theory 
such a monstrous solecism and so much opposed to every principle of 
construction that he did suppose it would be subscribed to but by few. 

The preamble, to be sure, explains the end of the Constitution. It 
was to secure the liberties and welfare of the American people, but 
upon what terms? Why, upon the terms designated in the Consti¬ 
tution. The people of America and the States knew r that the powers 
conceded to the General Government by the Federal Constitution 
were adequate to the ends contemplated. Then, to pretend to assert 
that although those powers which the States and people designated 
as those only which should be exercised were not the only powers that 
were granted was a calumny against the framers of the Constitution, 
for they must have intended to ensnare the people. For what mind 
could hestitate to pronounce that the object of enumerating the pow¬ 
ers must have been to fix barriers against the exercise of other powers. 
And Mr. Barbour demanded to know what was the use of a specific 
enumeration of powers if it was intended to invest the General Gov¬ 
ernment with sweeping powers? For what could be more awkward 
or ridiculous than to see the wisdom of America defining the par¬ 
ticular powers which its Government might legally and constitution¬ 
ally act upon and in the conclusion, in investing them with general 
powers, which from the expression must have included all those spe¬ 
cific powers which had been previously granted. Mr. Barbour then 


40 


ALIEN AND SEDITION LAWS. 


referred to Publius, second volume, pages 46, 4<, 48, as an author 
who had treated this subject very fully and ably. The gentleman 
from Prince George had said that the last clause of the eighth section 
of the first article, commonly called the sweeping clause, the sub¬ 
stance of which is: “ That Congress shall have power to pass all laws 
which shall be necessary to the carrying into effect the foregoing 
powers,” would justify Congress in making the laws complained of. 
Mr. Barbour asked, What was the object of that clause? It was not 
to create new powers, but to complete the other powers before 
granted. This clause svas indispensable; without it the Constitution 
would have been a dead letter, for if Congress possessed not the 
power of making laws to carry into effect the powers specifically 
enumerated, the powers granted would have been useless, since to 
possess rights which can not be carried into effect was just the same 
as if there were no rights. But no other construction could attach, 
for that clause speaks only of those powers which before had been 
granted; and if no power relative to aliens had been granted, this 
clause could have no possible effect, which he hoped he had suffi¬ 
ciently demonstrated. Mr. Barbour said that the gentleman from 
Prince George had relied upon the fourth section of the fourth 
article of the Constitution, by which Congress guarantees to each 
State a republican form of government and binds itself to protect 
each State from invasion, etc., as one out of which the implied power 
of making alien laws grew; for, he asked, how could the General 
Government protect from invasion without the power of passing a 
law like the alien? And that it was indispensable the General Gov¬ 
ernment should possess the power of expelling aliens; for if they had 
not the power, the State of Virginia might admit Bonaparte’s army 
with him at their head (if he should ever escape from the Nile). 

If, said Mr. Barbour, no other reason could be assigned in favor 
of the alien law than an idea so wild as the danger of admitting 
Bonaparte and his army, its supporters must be in pitiful distress. 
To anticipate danger of this kind was to attach to this State not only 
criminality, and that, too, of the blackest kind, but stupidity border¬ 
ing on idiocy, and to set at defiance the uniform experience of man¬ 
kind. For was it ever yet known that a nation participating in the 
blessings of liberty and peace invited into its bosom a powerful foe 
by which those invaluable blessings might be rifled ? An idea of this 
kind was the child of a mind laboring to but little purpose to find 
some justification for the opinions it advances. But who could have 
supposed that the section alluded to, which had for its object only 
imposing an obligation, should by some be converted into a source of 
power? What, Mr. Barbour asked, was the object of that section? 
It was to impose on Congress the duty of defending each State from 
invasion. Congress, in the eighth section, had the power of declar¬ 
ing war; yet, without this section, Congress was not bound to exercise 
this power; and was it not for this section Congress might have seen 
a State invaded and yet by the letter of the Constitution would not 
have been bound to have defended it from invasion, but might have 
left her to her own resources. To guard against this inconvenience 
was this section inserted; yet out of this the committee were told 
new powers are derived to the General Government. Mr. Barbour 
observed it appeared to him a bold and unjustifiable assertion to 
say that the expulsion of alien friends was necessary to prevent 


ALIEN AND SEDITION LAWS. 


41 


invasion. For his part, his small intellectual faculties could not 
perceive the. connection. He could readily perceive the necessity of 
expelling alien enemies, a right which Congress possessed and upon 
which they had acted; but that the expulsion of a friend was neces¬ 
sary to the prevention of invasion created in his mind a confusion 
of ideas. It was asked by the gentleman from Prince George by 
what authority did Congress exercise control over foreign intercourse 
if it was not by implication. 

Mr. Barbour answered that the power was granted, he thought, 
by the third clause of the eighth section of the first article, the 
second clause of the second section, and the third section of the 
second article of the Federal Constitution. By the first Congress 
has power to regulate commerce with foreign nations. By the second 
the President, by and with the advice and consent of the Senate, may 
make treaties, and shall likewise appoint ambassadors and other 
public ministers and consuls. And by the last the President is 
vested with the pow r er of receiving ambassadors and other public 
ministers; from which it is apparent that, without the aid of implica¬ 
tion, the General Government possesses the power of regulating 
foreign intercourse. It was asked, too. by the same gentleman by 
what power did Congress erect forts if it was not by implication? 
Mr. Barbour answered, by the last clause but one of the eighth sec¬ 
tion of the first article there was this language: “ Congress shall have 
power to exercise exclusive legislation in all cases whatsoever oyer 
such district, etc.; ” “ and to exercise like authority over all places 
purchased, by the consent of the legislature of the State in which 
the same shall be, for the erection of forts, magazines, etc.” Mr. 
Barbour concluded upon this point by observing that surely the 
gentleman had not read the Constitution, for if he had he would not 
have propounded the question when he must have known the answer 
would recoil upon him. It was asked, too, by the gentleman from 
Prince George if Congress possessed not the powder to make the law 7 
now under discussion, by what authority did they make a law rela¬ 
tive to alien enemies. Mr. Barbour answered he was happy he was 
able to instruct the gentleman upon the subject of the Constitution, 
which he [Mr. Taylor] had not read, or if he had it was in a cursory 
and inattentive manner. He referred the gentleman from Prince 
George to the eleventh clause of the eighth section of article the first. 
By that Congress had the power of declaring war. So soon, then, as 
war shall be declared, by the law of nations alien enemies become 
prisoners of war; and being prisoners of war, and Congress having 
the sole power of declaring war, Congress had a right to say what 
should be done with the prisoners, whose destiny Congress alone 
could decide. Again, the power of declaring w T ar was the genus. 
The prisoners which shall have been made under that declaration 
might be called a species. Now, as the genus has been granted, the 
species, which is subordinate to the genus, has been granted likewise, 
it being an axiom in reason that the lesser is always included in the 
greater. 

To deny the truth of this position would be as absurd as to say, 
when A has transferred to B a parcel of land, that the house or the 
wood upon the land are not granted likewise. Or, when a transfer 
in fee simple is made that the life estate is not given also. But it 
had been said that Virginia has passed a similar law and therefore 


42 


ALIEN AND SEDITION LAWS. 


Congress must have the right. Doctrine like this should be a warn¬ 
ing to the Virginia Legislature not to deviate from the principles of 
liberty or the spirit of its constitution, lest it should become a pre¬ 
text to justify the worst of purposes in the hands of the General 
Government. He observed that he would not say whether Virginia 
had done right or wrong in passing the law alluded to, because it 
was unimportant in the present discussion. He observed the doctrine 
contended for by the gentleman from Prince George ; namely, that 
Congress had a right to pass the law, because Virginia had done so, 
deserved the most serious attention and unreserved disapprobation 
of the committee. For, if it be true, the Government of the United 
States would become an absolute consolidated Government and the 
sovereignt}^ of the States annihilated; from which situation, said 
Mr. Barbour, good Lord deliver us! But fortunately for us, he said, 
the position existed only in the mind of its author. The State legis¬ 
lature had a right to regulate the mode of descents. Agreeable to 
the doctrine of the gentleman from Prince George, Congress would 
have a right to pass a similar law. Congress would possess the 
power of reviving the old feudal monarchical principles of primo¬ 
geniture ; and he had no doubt it would be done, because it would be 
in unison with the other acts of the General Government. Yet no 
sober man at this time would say that Congress has a right to say 
anything relative to the rules which shall be observed in the descent 
of estates. It must be clear and obvious to every man not infatuated 
with political fallacy that there is a line of demarcation drawn 
between the powers of the State and General Governments, and to 
assert that Congress can do whatever the State can do is as absurd as 
to sav the State can do whatever Congress can do; a position he did 
suppose the advocates of congressional omnipotence would be un¬ 
willing to admit. Mr. Barbour asked in what cases Congress had 
a right to call in the aid of implication (having admitted, for argu¬ 
ment, that they on particular occasions might resort to that alterna¬ 
tive). For, allow the supporters of the principle the utmost latitude 
for which they contend, it could only be resorted to when the Con¬ 
stitution has given a power that can not be consummated without 
implication. Wherever the Constitution was explicit, implication 
must be excluded. He said he would illustrate his idea bv assimilat¬ 
ing this case to the doctrine which would prevail in the instance of 
presumptive and positive evidence. Where positive evidence from 
the nature of the case can not be procured, presumptive evidence is 
admissible, but where positive evidence can be procured, presumptive 
evidence is inadmissible. 

The Constitution, too, in the ninth section of the first article, is 
expressly in point. It is to this effect, “ the migration or importation 
of such persons as any of the States now existing shall think proper 
to admit shall not be prohibited by the Congress prior to the year 
1808 .” This, then, explicitly declaring that Congress shall not inhibit 
the migration of aliens, if the State should think proper to admit 
them, must unquestionably exclude the idea of implication, and con¬ 
sequently the deductions drawn from that source (the source itself 
being corrupt) must be fallacious. But it might be answered by a 
quibbler that the alien law did not prevent the landing of aliens 
here. But where, Mr. Barbour asked, was the difference between 
their being prevented from landing and the very moment they landed 


ALIEN AND SEDITION LAWS. 


43 


being sent off? He begged leave to state a similar instance which 
would prove this was a distinction without a difference; namely, if 
a man should suffer another to come into his house, and the moment 
he stepped in should kick him out, would this not be as bad, nay 
worse, than if he had prevented him from coming in at all? The 
liberal mind looked down with pity and disdain upon such subter¬ 
fuges; and hesitated not to declare that the alien laws did beyond 
question violate the Constitution of the United States in this part 
thereof. This part of the Constitution being violated should excite 
universal alarm ; because to it was attached particular inviolability 
by the fifth article, which declares that in this particular the Con¬ 
stitution should not be amended prior to the year 1808 . Mr. Barbour 
said the gentleman from Prince George having exhausted the doctrine 
of implication had resorted to that of expediency, and contended 
that although Congress had neither express nor implied power to 
pass the law, yet, it being expedient, it was correct. He said if that 
doctrine be true, the Constitution, instead of being the main pillar 
of American liberties, was but an institution calculated to ensnare. 
By the provisions in the Constitution, which the American people 
supposed as so many guaranties to their liberties, they had been 
trepanned into a fatal apathy, whilst they indulged themselves in 
what they supposed a well-grounded reflection, that the checks in the 
Federal Government were inviolate. They were now, as it were, 
awakened from the fatal repose into which they had been carried by 
misplaced confidence; and as the people of Caroline well expressed 
it, this boasted Constitution of their own choice, and the rights which 
it secured, are to evaporate in the crucible of legislative expedience. 

He said he felt himself unusually agitated at the bare mentioning 
of such monstrous doctrine. Go, said Mr. Barbour, and read the 
historic page; it would there be found that expediency has been the 
invariable pretext of tyranny; it has been with that engine that 
tlie liberties of a free people were eternally assailed. If, said he, 
tlie time should ever come (which God forbid) when that doctrine 
should prevail, we might date it as the era of the downfall of 
American freedom. From that moment let the votaries of liberty 
be shrouded in sackcloth, and with ashes upon their head, deplore 
the departure of their protecting genius. And if from America 
the genius of liberty should ever take her flight, like the vital spirit 
it would return no more to reanimate the body from which it had 
flown. The gentleman, too, to support the necessity or expedience 
of the law, resorted to the situation of this country as it related to 
France. This, he said, w T as the favorite theme; this was a ground 
he had anticipated; it was not new; it had been successfully adopted 
by the higher orders of government. The conduct, of France toAvard 
this country had been echoed by the friends of administration from 
every part of America, and under the momentary delusion created 
by the dispatches of the American envoys, it was hoped that prin¬ 
ciples of usurpation might be pushed. The jealous friends of the 
Constitution and the liberties of the people, if they had fortitude 
to oppose the impulse of the moment and declare that the General 
Government was bent upon the subversion of republican principles 
were branded with the opprobrious epithets of being disorganizes, 
French partisans, and enemies to all order; and the President of 
the United States, confident of success from the supposed wisdom 


44 


ALIEN AND SEDITION LAWS. 


of liis operations, has condescended to become the head of the party 
and has used language, which from its billingsgate style, as a man 
he treated with supercilious contempt; but, as an American, he 
would feign shed an obliterating tear, which should efface it for 
ever. As coming from the Chief Magistrate of the Union, it would 
inflict an indelible stigma upon the American name. 

Mr. Barbour said he would not pretend to justify the conduct 
of France to this country. It was such as met with his disapproba¬ 
tion. It was an event, he said, that would be long deplored and the 
consequences thereof were incalculable, for it had become the pre¬ 
text of those measures of which he complained. But, he said, he felt 
indignant at the idea that domestic usurpation was to be justified 
upon the ground of the maltreatment of a foreign nation, and that 
the President of the United States should dare brand the guardians 
of the rights of the people with the offensive name of a faction, and 
to use his own language, that this faction should be ground into 
dust and ashes. Whom did Mr. Adams mean to call a faction? A 
majority of the yeomanry of America. For it was a fact not sus¬ 
ceptible of any doubt that a large majority of real native Americans 
were opposed to his election and his political opinions, which Mr. 
Barbour said he w r ould denounce as being hostile to republicanism. 
For, although Mr. Adams was elected by a majority of three votes, 
yet it was w r ell known that the majority was produced by artifice 
and coalition of Federal officers, persons deeply concerned in fund¬ 
ing and banking systems, refugees, foreigners (whose whole life had 
been but a life of warfare against the principles of free govern¬ 
ment), bankrupt speculators, and, to complete the group, all those 
who could profit by change and convulsion. Mr. Barbour said he 
would not be understood to pass an indiscriminate censure against 
all the friends of Mr. Adams, because he believed there were as 
virtuous and as enlightened characters friends to his election as were 
opposed to it. Neither should he have made any remarks* upon the 
nature of parties had not the gauntlet been thrown; from that 
circumstance lie thought himself justifiable in taking it up and 
causing it to recoil upon the head of its author. He said he sup¬ 
posed he was one of that party whose fate had been anticipated, but 
lie felt an elevating pride when he was classed with the names of 
Jefferson and Madison, names which to the latest time, so long as 
worth and real patriotism should be respected, would cast a shade 
upon the author of such sentiments. Mr. Barbour said for his part 
he could not perceive the connection between the conduct of France 
and the conduct of our own Government, and although the friends 
of administration had been able by their dexterity in the arts of 
delusion to gain a momentary advantage, although the passions of 
the people were excited for the instant, by which reason the noblest 
inhabitant of the human mind had been dethroned, yet they (for 
the people think generally right), at last, under the influence of 
truth, when generally disseminated, would regain their reason, un¬ 
clouded by passion, and at that moment they would spurn from 
them with inexpressible detestation the authors of their delusion. 
He hoped then that no more would be said of the conduct of France, 
in justification of alien and sedition laws. 

But the gentleman from Prince George had attempted to alarm 
the committee into his opinions by delineating the fate of the island 


ALIEN AND SEDITION LAWS. 


45 


of St. Domingo. He told us that the fertile plains of that island had 
been deluged with seas of blood and strewed with mangled carcasses 
and mutilated limbs; and.that if the alien law had not passed, by 
which all dangerous aliens were excluded, the same fate might have 
befallen the Southern States. The committee were almost taught to 
tremble at the idea of their houses being wrapt in flames; their 
property a prey to rapine; their lives to massacre; their wives, their 
daughters, and their sisters falling victims to the brutal and indis¬ 
criminate lust of the negro; and, in short, everything to mercy and 
ruin. But, Mr. Barbour said, he respected too highly the good sense 
and judgment of the committee to suppose for a moment that 
attempts of that kind would succeed; he knew they would be deemed 
the meager, unimportant chink of the moment, that would scarcely 
survive the instant that gave them birth. That gentleman's sensi¬ 
bility was organized only by imaginary evils; it was not at leisure 
to deplore the situation to which the unfortunate aliens by this law 
will be reduced. Instead of this class of people moving in the ele¬ 
vated sphere of freemen which they occupied before the adoption 
of this law, they will be sunk into the despicable grade of slaves, 
whose destiny was suspended upon the arbitrary nod of one man. 
Mr. Barbour said the committee were told, too, of a conspiracy which 
had for its object a schism in the empire, by which we were to lose the 
western country. Where was the evidence of that? Before he was 
willing to legislate, he said, he must have evidence of the fact, of a 
fact apparently so incredible and so derogatory to the character of 
his country. He believed the western country, particularly Ken¬ 
tucky, was inhabited by as virtuous and as patriotic characters as 
the world ever produced—men who possessed that genuine and fer¬ 
vent regard for the cause of liberty that goes'to elevate human nature 
a grade in the scale of animated nature, from which they look down 
with ineffable disdain upon such calumnious charges as those. Con¬ 
spiracies, plots, and wild chimeras were always resorted to in justifi¬ 
cation of tyrannic measures. The popular pretext of public good 
was the auxiliary called in to palliate measures pregnant with public 
evil. And too frequently under the mask of a zeal for the welfare 
of the Commonwealth were concealed designs which would eventuate 
in the destruction of the liberties of the people. But they had been 
told by the gentleman from Prince George that the law was made 
for two characters, to wit, Talleyrand and Volney, and that those 
characters had in consequence of the same sneaked off. 

Independent of the absurdity of the principle, namely, the making 
a general law to suit a particular case, the gentleman was most 
egregiously mistaken in point of fact, for Talleyrand was minister 
for foreign affairs for France and in France at the time the law 
passed. How, then, the law could pass to operate on Talleyrand 
was to him astonishing. For the character of Talleyrand, Mr. Bar¬ 
bour referred to the statement which had been made by the gentle¬ 
man from Prince William. It was sufficient to say that so as he 
was supposed to be a martyr to the cause of monarchy, so long he 
was bosomed by Mr. Hamilton and his party. As to Mr. Volney, he 
said the cause of truth and virtue required he should speak more 
at large. He had the pleasure of seeing that meritorious character 
whilst in America, but he knew him better by history than from 
personal acquaintance. He from maturity had been influenced by 


46 


ALIEN AND SEDITION LAWS. 


I lie benevolent desire of ameliorating the condition of mankind by 
illuminating the mind and dispelling superstition. It was for this 
sublime purpose we saw him traversing Asia and sitting in medita¬ 
tive silence amidst the ruins of Palmyra, drawing wisdom from 
experience and developing the causes which contribute to the dissolu¬ 
tion of the elements of society and the overthrow of empires, and his 
capacious mind filled with materials of knowledge of the best kind. 
We saw him returning thence to his native country to publish to the 
world his acquirements, as so many beacons by which those who sit 
at the head of affairs might guide the vessel of state free from those 
shoals upon which they have so frequently shipwrecked. Unfortu¬ 
nately for this philosopher, for France, and for the world, Robe¬ 
spierre was at this time at the acme of power. Robespierre, the most 
infamous of mankind, always the enemy to national and genuine 
liberty wherever it was found, confined this friend to the species in 
the instrument of despotism, a gloomy jail. By the working of 
events a revolution takes place in France, by which this sanguinary 
tyrant met the fate which all usurpers merit. Liberty reared its 
head and emancipated one of its votaries, the enlightened Volney. 
No sooner was he free from incarceration than he left once more 
his native country in pursuit of wisdom and steered to Columbia, 
once happy land. He explored this extensive continent and returned 
once more to Europe to analyze his knowledge and to benefit man¬ 
kind by disseminating the useful information which he had acquired. 
This, then, was the character against whom such unfounded cal¬ 
umnies have been uttered. But unless some evidence was exhibited, 
he should take the liberty to say that they were the offspring of the 
gentleman’s own imagination, begotten by the phantom of delusion. 

The gentleman from Prince George observed that the power of 
making a law like the one under discussion should belong to Con¬ 
gress; otherwise, Congress would be dependent upon 16 States. This 
doctrine would perhaps do if the gentleman was in convention and 
was ascertaining the powers which should be exercised by the Con¬ 
gress, but the committee were not inquiring what these powers should 
be, but what they were. This reasoning he made no doubt was urged 
in convention, but the Representatives of the large States, which 
were but thinly inhabited, were opposed to the po^er being conceded 
to the General Government ; and he had shown, in a former part of 
his argument, that the power of restraining tl>e migration of such 
persons as the States should think proper u /admit was expressly 
inhibited by the Constitution. The sanoe^gentleman descanted at 
large upon the conduct of France toward the European powers. 
Subterfuges of this kind evidently demonstrated the distress to which 
the supporters of this law were reduced. For what had the conduct 
of France to do with an abstract inquiry upon the constitutionality 
of the law under discussion. Alternatives of this kind were calcu¬ 
lated only to inflame the passions at the expense of reason. But 
since the committee had been driven into this subject unavoidably 
Mr. Barbour said he would examine what had been the conduct of 
France to the European powers—why she had done to those powers 
what those powers intended to do to her. She had subdued them, and 
out of the rotten Governments under which those countries groaned 
had established four republican Governments. The gentleman said 
that the French intrigues succeeded only in republics, whilst in 


ALIEN AND SEDITION LAWS. 


47 


monarchies they had no effect. This was a calumny against republi¬ 
can government en masse, and required serious attention and refu¬ 
tation. 

Mr. Barbour asked, Where was the republican government the 
overthrow of which that gentleman so much deplored? Was there a 
republican government in Europe? No; there were some which had 
impudently assumed the name, but it was a fact not to be contro¬ 
verted that in those countries the Governments Avere completely 
aristocratic; than which no Government could be worse. But per¬ 
haps that gentleman had become a disciple of the new philosophy 
which had sprung up under the influence of the present administra¬ 
tion, the head of which had declared that aristocracy is the dictate 
of nature, is indispensable to the order of society and the happiness 
of mankind (alluding to Mr. Adams’s answer to the address of the 
people of Harrison County). If this principle were admitted as 
orthodox the world should lament the ruin of aristocracies, but if it 
were false (which he believed the greater part of America would not 
deny), so far from mourning their downfall, it should diffuse general 
joy. Mr. Barbour said he had now pursued the gentleman through 
all the arguments, which he had given into on the score of expediency, 
and trusted he had demonstrated their fallacy. He would now call 
the attention of the committee to a contrast he Avas about to draw 
between the law and the Constitution. Let it then, for argument 
sake, be admitted that, Congress had a power to make a law relative 
to aliens; yet might not Congress violate that right. As for example, 
Congress have the power of laying a direct tax, yet Congress might 
violate that right in laying a tax without reference to the inhabitants 
of the State upon which the tax was to be laid. The alien law, Mr. 
Barbour said, violated the sixth amendment of the Constitution (the 
substance of which was^ “ that no Avarrant shall issue but upon 
probable cause, and that, too, supported by oath or affirmation ”) ; 
in this that the President, without probable cause, without an oath, 
and barely upon suspicion, had a right to apprehend the alien against 
whom some mercenary informer may have lodged a complaint. It 
likewise Auolated the seventh amendment in this: That by the alien 
law the President was invested with the power of consigning to 
banishment, without the formality of trial, this unfortunate class of 
people, of which he supposed we had myriads amongst us, when by 
that amendment it is declared “ that no person shall be held to 
answer for a capital or otherwise infamous crime, unless on a present¬ 
ment or indictment of a grand jury.” 

By the eighth amendment it is declared, too, that in all criminal 
prosecutions the accused shall enjoy a speedy and public trial by an 
impartial jury of his vicinage; and to be informed of the nature and 
cause of the accusation; to be confronted with the witnesses against 
him; to have compulsory process for obtaining witnesses in his favor: 
and have the assistance of counsel for his defense. It was only neces¬ 
sary to read the alien law to sIioav the palpable violations of the 
Constitution. No oath or affirmation was requisite; no presentment 
or indictment by a grand jury necessary; no trial by jury; his accusa¬ 
tion, conviction, and punishment Avere all to be announced by the 
presidential officer in one breath. It was true there might be a kind 
of mock trial before a tribunal filled with characters selected by the 
President; a tribunal not under the solemnity of oath, not under the 


48 


ALIEN AND SEDITION LAWS. 


least responsibility to public opinion, but from the nature of their 
institution are taught to kiss the hand from whom they receive their 
authority; a tribunal unknown to our Constitution, and, in fact, as 
far as^it went was an epitome of the star chamber and high commis¬ 
sion court. 

But, Mr. Barbour said, he had been told that the aliens were not, 
parties to the compact and therefore were not entitled to the benefit' 
of the compact. He contended that by the law of nations, but what 
weighed still more strongly upon his mind, upon principles of reason 
and humanity, they were entitled to the benefit of the rights secured 
under the Constitution. The Law of Nations, Vattel, page 171, sec¬ 
tion 135, declares that the sovereign authority of a State has no right 
to prevent the migration of persons into its country without a good 
reason. As, for example, China has a right to refuse the admission 
of aliens, because its country is completely populated, and because 
the admission of aliens would operate an insuperable injury to its 
citizens. But what good reason could America assign for refusing 
admittance to strangers, with a country extensive, fertile beyond 
exception, and uninhabited. Had not the persecuted alien, then, a 
claim upon us not to be frittered away by the ingenuity of sophistry? 
Mr. Barbour said, having shown that strangers had a claim upon us, 
and that by the laws of nations they have a right to come amongst us, 
he would proceed to prove that when they were in this country they 
Avere entitled to the benefit of the law. For this purpose he would 
refer to Vattel’s Law of Nations, pages 160-161. It is there said 
that the law of the land is not only applicable to the particular sub¬ 
jects or citizens of the sovereign authority, but applies to all orders 
of people of every description. It appeared to him a doctrine of 
the most cruel kind, and which he trusted he should never again hear 
reechoed from these walls, to attempt to narrow the operation of an 
instrument for the purposes of despotism. A benign philosophy 
would dictate that the Constitution should receive a liberal construc¬ 
tion when the welfare of thousands required it. But Mr. Barbour 
said that aliens were parties to the compact, so far at least as relates 
to security against oppression. For by coming to this country they 
tacitly agree to be bound by the Constitution and laws thereof. If 
an alien committed an offense, how in ordinary cases was he tried? 
As citizens. Flow was he punished? As citizens. Surely, then, as 
he was to be punished by the laws, he should be entitled to their 
protection. And Vattel further mentions that an injury done a 
stranger should be punished by the sovereign authority in as exem¬ 
plary a manner as if done to a citizen. 

But it had been said that the sending off of aliens was no punish¬ 
ment ; it was a kind of preventative justice. Language like this was 
the offspring of a cold heart and muddy understanding. What! 
Was it no punishment to banish a fellow man from a country where 
he has invested his all, where he has formed the strongest imaginable 
ties, and in which he expected to find an asylum from the fangs 
of despotism? And perhaps to consign him back to the country 
from the persecuting tyranny of which he might have fled? Let 
those who advocate this doctrine bring the case home to themselves 
and inquire if the} 7 would not conceive it a punishment to be ban¬ 
ished from a country which contained their all. Mr. Barbour 
observed that the alien law had violated the Constitution in a very 


ALIEN AND SEDITION LAWS. 


49 


obvious manner by destroying the main pillar upon which all free 
governments stand, namely, a separation in the three great elements 
of government By it the President was invested with legislative,, 
executive, and judicial powers, which Montesquieu defines to be the 
essence of despotism. He first gave his assent to the law as Presi¬ 
dent. He then legislated in establishing a rule by which the alien is 
to be tried, and every rule was a law. The law itself has established: 
no rule, has pointed out nothing which the alien shall avoid, nor yet 
prescribed anything which he shall do. The President, in the 
gloomy, dark, and inaccessible recesses of his mind, was then to pre¬ 
scribe the rule and make it known only when he intended to punish 
under the rule. There, then, he legislated. He then was to judge- 
whether the alien had violated his own rule; and if he should con¬ 
ceive or suspect that he had, he was then to carry his own sentence 
into effect. If he had been called on to delineate a picture of fright¬ 
ful despotism, Mr. Barbour said he should think he had discharged 
the task by copying the alien law. The President of the United 
States was invested with the pleasing and humane power of pardon¬ 
ing. What kind of a figure would the President exhibit, when he 
had accused and condemned the poor unfortunate alien, to be applied 
to for a pardon? Was it ever yet known in a country which had 
participated freedom and had progressed in jurisprudence that the 
same man or set of men had the power of condemning and pardoning 
at the same time? The enlightened Montesquieu has observed that 
it would create a confusion of ideas, and the world would be at a loss 
to know whether the culprit had been acquitted or condemned and 
pardoned. 

In consequence of the measures which had been pursued the execu¬ 
tive branch of the Government had acquired an undue preponder¬ 
ance of power which had derogated from the other branches; the 
result of which was, that instead of their moving in the dignified 
sphere of planets, they had dwindled into the pitiful character of 
satellites, which played around the Executive with servile com¬ 
plaisance. And the liberties of the American people, which revolve 
around the Constitution as the center of their system, should that be 
destroyed, would be precipitated into ruin likewise. America was 
destined, he said, to increase the already extended catalogue of 
despotic nations, and we should be compelled to admit the melancholy 
truth, that man is not susceptible of self-government, but is doomed 
to be governed (he trembled whilst he related it) by arbitrary, ac¬ 
cursed arbitrary sway. But notwithstanding all this, we were told, 
hail Columbia, happy land! That the people of America were the 
happiest in the world. What then, were the people to wait till the 
pressure of the evil principle was felt? No. As an elegant author 
expressed it, they augur misgovernment at a distance and snuff the 
approach of tyranny in every tainted breeze. The political horizon 
of America, which some years ago shone with undiminished luster 
and which attracted the admiration of all the world, was now dark¬ 
ened with clouds of domestic usurpation, which waited but for some 
incentive to burst in dreadful violence upon our heads. What an 
august melancholy scene was here! That at the conclusion of the 
eighteenth century, a time which 20 years ago by the sanguine 
admirers of the rights of mankind, would have been anticipated as 
52068—S. Doc. 873, 62-2- 4 



50 


ALIEN AND SEDITION LAWS. 


the birthday of a general jubilee of emancipation, when distant 
nations would have heard and have quickened into public life the 
sound, the Virginia Legislature was brought to decide whether even 
in America itself, the birthplace and cradle of liberty, liberty shall 
be preserved, or whether, bound hand and foot as it was, it shall be 
offered up as a sacrifice upon the altar of vice and ambition. Mr. 
Barbour then expressed himself in the following strong and animated 
manner: Legislators of Virginia, the voice of the people speaks to 
you; the eyes of the friends of liberty throughout the continent are 
upon you; and the friends of mankind throughout the world are 
waiting in anxious solicitude the result of your deliberation. The 
road to immortal honor is open before you, the temple of fame is 
within your reach, and the welfare of your country calls eminently 
upon you. By the adoption of the resolutions you raise a rampart 
against the inroads of usurpation, and your names will be wafted 
down on the stream of time, crowned with laurels, and as they pass 
will be hailed by a grateful posterity with plausive acclamations. 
But if you reject, you give additional weight to the already over¬ 
grown power of the General Government, by which the liberties of 
the people will be subverted, and in some aftertime when our country 
shall consider us the people pointing you out shall say, there go 
the authors of our misfortunes. 

He then concluded by thanking the committee for the attention 
they had given him. 

On motion the committee then rose, the chairman reported progress, 
asked and obtained leave for the committee to sit again. 


In the House of Delegates. 

Tuesday , December 18 , 1798. 

The house resolved itself into a committee of the whole house on 
the state of the Commonwealth, Mr. Breckenridge in the chair, when 
Mr. John Taylor’s resolutions being still under consideration, 

Mr. Magill said that he arose with sensations never before ex¬ 
perienced by him; that he conceived the peace of the United States 
to be involved in the decision which the committee were about to 
make; for the question appeared to him to be whether the States 
should remain united under the Federal Constitution, or that in¬ 
strument which they were bound to support be declared of no force 
or effect; that in delivering his sentiments to the committee he would 
address himself to the reason of the members and avoid an appeal 
to their passions; for if the opinion he advocated could not be sup¬ 
ported upon this ground, he would not resort to any other. That he 
had attended to the arguments of the gentleman from Orange, and 
those of the gentlemen who preceded him on the same side; with 
their eloquence he was pleased and their talents he admired, but the 
judgment he had formed upon the laws, after the most serious 
reflection, so far from being shaken, had received additional force 
by the manner in which the debate had been conducted. When 
gentlemen of first-rate talents amuse the fancy with eloquent ha¬ 
rangues, instead of attempting to inform the understanding, to him it 
was evident that they thought their positions untenable. 



ALIEN AND SEDITION LAWS. 


51 


He said we are to decide upon the constitutionality of the “ alien 
and sedition laws,” as they are generalty called, and in so doing are 
we not erecting ourselves into a court of justice, particularly so as 
the resolutions declare those laws null and void; for where is the 
department of the Government, except the judiciary, that can exer¬ 
cise this power. He said that the present assembly was chosen by 
the people for the ordinary purposes of legislation, and he begged to 
know the source from whence their judicial powers even over a la\v 
passed by themselves, in a case where their jurisdiction was com¬ 
plete, could be derived. If, said he, it be admitted that we can not 
judicially act upon a law passed by this or any other assembly of 
this Commonwealth, and that our courts alone can do so, where is 
that law, point out that feature in the Federal Constitution that 
gives to this body the power now about to be exercised. He said that 
the public papers had teemed with invectives against Congress for 
passing these laws. Could gentlemen say this was a criterion to 
judge them by? He said that in all the publications he had seen, 
and the arguments he had heard used, the authors had taken for 
granted what remained to be proved. Admit the premises, and the 
conclusion may fairly be drawn. The gentleman from Orange, Mr. 
Magill said, had observed that the President of the United States 
was a friend to monarchy, or in favor of a monarchical government. 
Admitting this for argument’s sake to be correct, what relation, said 
he, can it have to the subject now under consideration; will it en¬ 
lighten the mind of a man when he is called upon to form an opinion 
upon an important point to have his judgment drawn from that 
object by suggesting one foreign and entirely unconnected with it? 
He said that, for his oivn part, Mr. Adams possessed his highest con¬ 
fidence; that he viewed him as the tried and true friend of his coun¬ 
try; that the happiness of his felloAV citizens was his first object; 
that he looked up to the virtues and talents of Mr. Adams with 
veneration, and would only add that his administration had, in his 
opinion, been pure and uncorrupt. These sentiments, though un¬ 
popular here, I ever have and will avow, said Mr. Magill, so long 
as the measures heretofore pursued be continued. He then con¬ 
tended that the statement of the gentleman from Prince George, re¬ 
specting the rights of aliens, was correct, and the contrary one of 
the gentleman from Orange not so, and gave his reasons for this 
opinion. He observed that he meant to be concise in his replies to 
the arguments against the alien laws, as the gentleman from Prince 
George had opened that part of the debate, and would in concluding 
it notice all such as he should omit. He said that he adopted this 
mode, supposing that the opening of the sedition act, which had 
been assigned to him, would take up as much time as the house could 
on that day allow him. He then defined as necessary to a perfect 
knowledge of the subject the powers of the General and State Gov¬ 
ernments. He observed that the only true and natural foundations 
of society are the wants of individuals. He said this rule applied 
to the States, considered as such, at the time this Constitution of 
the United States was formed. The insufficiency of the old Confed¬ 
eration, said he, evinced their wants, and to prevent again experienc¬ 
ing these wants this Constitution was formed. He observed that to 
him the Constitution of the United States should be thus explained, 
as giving to the Federal Government a control over the national 


52 


ALIEN AND SEDITION LAWS. 


affairs; to the State governments, the case of State or local concerns. 
Upon this definition, and the Constitution taken together, he pro¬ 
ceeded to inquire if the alien law had violated the Constitution in 
any respect; and he agreed with the gentleman from Prince George 
in his statement respecting aliens, that Vattel’s doctrine was solid 
and to be relied upon. He insisted that the safety of a nation could 
not be secured without such a power as this law gave being de¬ 
posited somewhere. He agreed with the gentleman from Spotsyl¬ 
vania that the dispute with France, if it could be avoided, ought not 
to be introduced; but how, said he, can this be done? The unjust 
and infamous conduct of France should make our Government care¬ 
ful how its citizens introduce themselves amongst us, with their 
diplomatic skill; and to guard against attempts of that nation and 
its citizens this law perhaps was passed. He then adverted to Vol- 
ney and Talleyrand, of whom the gentleman from Prince George 
had spoken, and said that that gentleman had not been correctly 
understood by the gentleman from Prince William and others when 
they alluded to his remarks upon Talleyrand and Volney. The gen¬ 
tleman from Spotsylvania had mentioned the independence of the 
State governments at the time of the adoption of the Constitution. 
He admitted that to be true, but said the argument w T as of no weight 
unless it could be proved that they were independent now, as their 
situation at that period was the subject. He then made some re¬ 
marks in answer to the gentleman from Brunswick, upon the first 
clause of the ninth section of the Constitution, restraining Congress 
from prohibiting migration; and he said the gentleman from Caro¬ 
line had not relied upon that clause, but the gentleman from Orange 
had. 

He said that he thought the clause last mentioned related only 
to slaves, and his reason for thinking so was founded upon the lan¬ 
guage used in the latter part of the clause and the whole Constitu¬ 
tion taken together. He then quoted the opinion of Mr. George 
Nicholas, delivered at the time of the adoption of the Constitution, 
in effect the same as his own. He here read the opinion delivered by 
Mr. George Mason in the debates of the convention in Virginia in 
regard to the clause referred to respecting migration and importa¬ 
tion extending to slaves only. He took this to be the opinion of Mr. 
Mason inasmuch as his observations, as well as those of others, were 
confined to that description of persons alone. He then mentioned 
the alien law of Virginia not, he said, with a wish that if it were 
erroneous it should be a precedent, but to show what was the opin¬ 
ion of the legislature of this State at that time. They had been 
told that the Legislature of Virginia had a right to pass such a law 
and that Congress had not. He contended on the contrary, from the 
Constitution, that the State had a power to pass such a law only 
until Congress should interfere by passing one upon the subject. 
He assimilated this to the case of citizenship upon which laws had 
been passed by the State that were set aside when Congress passed 
a general law by the force of that law. He then said that the clauses 
in the Constitution of the United States and in the Bill of Rights 
of Virginia securing the trial by jury were couched in general terms 
and neither were ever supposed to be infringed until the passage 
of the alien law by Congress. The people of this State had passed 
such a law for the same reason as had induced Congress to pass one, 


ALIEN AND SEDITION LAWS. 


53 


to wit, to insure domestic tranquillity. Let me ask, said lie, if here 
we ought not to pause and not hastily condemn a former legislature 
of our own State. Lie then proceeded to show that by the suspension 
of the writ of habeas corpus (which the Constitution warranted in a 
particular case) the trial by jury was taken away even from a citizen. 
Would not then, he said, the true meaning and spirit of the same 
instrument allow it to be taken away from an alien, a person entitled 
to no absolute rights and who was no party to the compact, in a simi¬ 
lar case? He then stated at large the proceedings which took place 
in the case of the suspension of the writ of habeas corpus and ob¬ 
served that a person then charged must remain in prison without a 
hearing until the emergency had ceased. That case then, he said, 
was in principle the same as the alien law. The cause for the sus¬ 
pension of the writ of habeas corpus was temporary, and when the 
cause had no longer an existence the effect would also cease. He 
then contended that when the alien law had passed there was good 
cause to apprehend danger from without and from aliens within our 
territory; to guard against their attempts was proper. He said the 
gentleman from James City had urged the necessity of aliens being 
informed of the rule of conduct which should govern them upon 
their arrival in America. In reply to this he, Mr. Magill, would 
observe that aliens must know that rule from the Law of Nations, 
which is a part of the law of every country, and is simply this, “ In¬ 
terfere not in the governmental affairs of a foreign country and con¬ 
fine your attention to your individual concerns whilst in that coun¬ 
try.” He thought this power given by the law of removing aliens 
properly vested in the President. He stated his responsibility and 
the eminent services rendered by the present President together with 
his known attachment to his country as a pledge that he would not 
act cruelly or unjustly. The gentleman from Caroline had argued 
upon the condition upon which the Constitution was adopted in Vir¬ 
ginia, and upon that point he had understood him to say that the con¬ 
dition being broken we were no longer bound by the ratification. 
This, Mr. Magill said, was an alarming doctrine. He then recapitu¬ 
lated his several arguments in order, he said, to impress upon them 
what he had attempted to prove and said that he would then con¬ 
sider the sedition law. And here he requested the attention of the 
committee,, this law being in its nature particularly important, citi¬ 
zens being affected by it. The freedom of the press correctly under¬ 
stood and as it was considered by the framers of the Constitution 
he contended was not abridged by the law. He then read the sedi¬ 
tion act and said the passage of this law was opposed in Congress 
by those gentlemen who had opposed the defensive measures adopted 
against a foreign nation and in Virginia it was reprobated on the 
ground of its being unwarranted by the Constitution. He asked is 
there by this law an addition to our penal code and said that, in his 
judgment, no new offense was created by it, everything it forbids 
being before an offense at common law. He said here it will be 
proper to inquire whether the doctrines of the common law apply 
or form the basis of our laws; that they do so he took to be clear and 
evident; such was the opinion entertained in the Virginia convention. 
He said that what the doctrines of the common law were prior to 
and at the establishment of the Constitution of the United States 


54 


ALIEN AND SEDITION LAWS. 


must then be the rule and the term liberty of the press, as then under¬ 
stood, an important consideration. 

He then read the history of the liberty of the press as laid down by 
Blackstone in the fourth volume of his commentaries and said this, 
then, is the history of the term “ freedom of the press.” It was an 
exemption from all power over publications, unless previously ap¬ 
proved by licensers. To show that it did not extend to an exemption 
from legal punishment, according to the principles of the common 
law, he said let us again return to the same author, “ Libels are mali¬ 
cious defamations of any person, and especially a magistrate, made 
public by either printing, writing, signs, or pictures in order to pro¬ 
voke him to wrath.” He proceeded to read Blackstone’s definition, 
with the mode of proceeding against persons charged with libelous 
publications. The liberty of the press, as he had stated it, he said 
was essential to a free State and drew the distinction between the lib¬ 
erty and licentiousness of the press. He said, with this definition of 
the freedom of the press as -it was before them, with Blackstone’s 
rational observations in their view, can we for a moment suppose that 
Congress, when they concurred in recommending the third article of 
the amendments, and the assemblies of the different States, wdien 
they ratified and approved that article, intended to procure an ex¬ 
emption for writings false, scandalous, and malicious from punish¬ 
ments according to the principles of the common law. Doth not the 
judicial powers of the United States expressly extend to controver¬ 
sies to which the United States shall be a party ? Can there be a case 
in which the United States shall be called a party if not to those 
which are offenses against the United States, their people, and Gov¬ 
ernment? Was it intended that the Government should be destitute 
of the means of defending itself or its members? Have not Con¬ 
gress power u to make all laws necessary and proper for carrying 
into execution the powers vested by the Constitution in any depart¬ 
ment of the Government of the United States”? He said, Let us 
now see what construction hath been put upon the twelfth clause of 
the Bill of Rights in Virginia by the assemblv of that State, for a 
law by that body is an express declaration of the opinion it enter¬ 
tains. The twelfth clause is, “ That the freedom of the press is one 
of the great bulwarks of liberty and can never be restrained but by 
despotic governments.” The Constitution of the United States says, 
in the third article of the amendments, “ Congress shall make no law 
respecting an establishment of religion, or prohibiting the free exer¬ 
cise thereof, or abridging the freedom of speech or of the press, etc.” 
In substance the language is the same. Amongst the laws passed in 
1792 is one to be seen in page 219 of the Revised Code, entitled 
“An act against divulgers of false news,” which law enacts “That 
whereas,” etc. He then read the law. The legislature was then of 
opinion that divulgers of false news, whether printers or others, were 
not protected by this clause in the Bill of Rights. Are we, he asked, 
wiser than a former assembly? This law in our Code, upon being 
compared with the law of Congress, will be found much more severe 
than the latter. By the law of Congress the accused may give in 
evidence in his defense the truth of the matter contained in the pub¬ 
lication charged against him, etc. But, said he, is it known to the 
people that in a prosecution for a libel in Virginia under the State 
laws you can neither plead nor give in evidence the truth of the 


ALIEN AND SEDITION LAWS. 


55 


matter contained in the libel? He said, in a civil action, the truth 
could be pleaded in bar of the suit, and upon proving the plea a 
verdict would be found for the defendant. He here pointed out the 
mode of proceeding by indictment against a person accused and tried 
under the State law for a libel, and said here is a material distinction 
between the two laws. He contended that the freedom of the press 
was not abridged, no new offense being created. He asked, How can 
the officers of Government carry the laws of the Union into effect 
without possessing the confidence of the people? He said, What is 
this law designed to prevent? Is it the circulation of false and mali¬ 
cious slanders? And if so, can any man wish to exercise such a 
right, even admitting him to possess it, the bare use of which would 
cover him with infamy ? He said a law passed by us is right, but a 
similar law passed by Congress, having equal power upon the subject 
matter, is wrong. He repeated his several arguments in order and 
said that the committee had been so indulgent that he would now 
pass on to the resolutions offered. And here, he said, it appeared to 
him that the wisdom of man could not devise a more certain mode 
of preventing a repeal of the laws complained of than that which the 
resolutions pointed out. Are gentlemen serious, he said, in wishing 
a repeal? He said the moment that the paper under consideration 
was adopted he should consider as giving birth to a serious and 
alarming contest. He said, Are we sincere in our professions of 
friendship to the Government of the United States? If so, why 
snatch with avidity an opportunity of resorting to a measure violent 
in its nature before we have made an attempt, moderate and temper¬ 
ate? Would this conduct, he said, be pursued by an individual 
wishing to be reconciled to his friend? 

He said the resolutions are certainly incorrect. The States alone 
are parties.' What; are the people entirely excluded? He con¬ 
tended that there is not a State in the Union that hath so unequal a 
representation in the State legislature as Virginia. Are the people 
of Virginia represented according to numbers? No; it is the name 
of a county. Two hundred freeholders have the same voice in this 
assembly as 1,000. This statement, he said, the committee knew 
was accurate, and the two counties could be named. He then referred 
to the third amendment to the Constitution of the United States, 
which secures the right of petitioning for a redress of grievances. 
The States, he said, could never be injured while that power existed, 
and could he be convinced that the people were aggrieved, he would 
join in a constitutional moderate way to obtain a redress. He said 
the Kentucky resolutions, as did ours, declared these laws null and 
void. If they are so, let the proper courts say so. He then pro¬ 
ceeded to show that the States could not form a coalition, for by 
the Constitution they are prohibited from entering into any con¬ 
federacy or making any agreement with each other. In substance,, 
he said, this was forming a confederacy. He then read an extract 
from the Federalist, in the writing of which the gentleman from 
Spottsylvania had said Mr. Madison was concerned. 

He said he thought the laws constitutional, and then enumerated: 
the consequences of adopting the resolutions before the committee. 
He enlarged upon this subject, and again entreated the committee- 
to pause and seriously to reflect upon the awful question: before 
them, for such he really considered it. 


56 


ALIEN AND SEDITION LAWS. 


Mr. Foushee arose next and asked if it would be necessary for him 
to tell the committee that the subject was important after what the 
gentleman last up had said: “ That peace or war was to be the 
consequence.” And being so important, he (Mr. Foushee) thought 
that they should most seriously consider the matter previous to a 
decision on the resolutions before the committee. He then made 
some remarks upon the quotations from the law of nations, used 
by Mr. George K. Taylor and Mr. Magill to show that sovereignty 
must reside in every independent nation, and the power consequently 
attached to sovereignty. This doctrine he did not deny, but said if 
the States individually were sovereign before and at the time of the 
adoption of the Constitution, which he contended they then were 
and still are, he asked could anyone lay his finger on that part of 
the Constitution of the United States which had taken away their 
sovereignty in those cases embraced by the alien and sedition laws? 
That the Constitution was a limited compact and contained no 
powers but those granted. But the common law and implication had 
been resorted to by gentlemen in support of a contrary doctrine. By 
admitting the common law and this construction to have force, 
he said, Congress might under these, and the terms general welfare, 
pass any act whatever, thereby setting the Constitution at naught 
and making it a dead letter, and nothing would be reserved to the 
States or to the people. He was alarmed, he said, at the method 
which the gentleman from Prince George had adopted in selecting 
the alien from the sedition law in his arguments, and confining him¬ 
self to the former. In doing so he (Mr. Foushee) feared he dis¬ 
covered an intention, under the guise of attacking aliens only, who 
were certainly the most unpopular inhabitants amongst us, to lay a 
foundation for inflicting similar injuries in future on such of our 
citizens as might give offense, and that he thought the selection of 
this law might keep the danger he apprehended out of general view. 
Mr. Foushee made several observations in answer to Mr. G. K. Tay¬ 
lor, respecting the rights of aliens, and observed that by the alien 
law they were deprived unconstitutionally of liberty, which he (Mr. 
Foushee) contended was one of their rights, as well as life and 
property, to which it was acknowledged they were entitled, for the 
loss of their liberty; however, he said, the gentleman from Prince 
George expressed no pity nor offered any excuse except one, which 
might be the plea of any tyrant. Mr. Foushee then said he thought 
and feared that the alien law was but a step to something else, to 
wit, a precedent under which citizens might in future be attacked. 
Danger, too, he said, had been assigned as the cause of passing those 
laws. That cause, he observed, might be raised up at any time by 
an artful President, who could perhaps previously get such a treaty 
made as to suit his purpose, and, under the idea of danger, to pro¬ 
duce a state of preparation by which his power might be increased, 
and which might become injurious by the extension of influence 
arising from patronage, for instance, and so forth. What direful 
acts and effects of usurpation, said he, may not ensue under the 
pretense alone of danger? The unconstitutionality of these laws, 
he observed, had been so fully proved that it would be unnecessary 
then for him to say anything further on that head, and that if 
there was an act at which the human mind could revolt it would be, 
in his judgment, the denial of such unconstitutionality. 


ALIEN AND SEDITION LAWS. 


57 


He then said that if the doctrine of some gentlemen on the floor 
of Congress and that contended for by a certain modest pamphleteer, 
as lately published, and which some days past had been so copiously 
detailed by the member from Prince George and which he [Mr. 
Foushee] had since seen, could be established, he admitted the reso¬ 
lutions must be wrong; but, as he was well satisfied such doctrine 
could not be supported, he thought the resolutions ought to receive 
the sanction of the committee. He mentioned the subject of impli¬ 
cation again and dwelt on its direful consequences, many of which 
he particularly enumerated. He then proceeded to answer quota¬ 
tions made by gentlemen from certain laws of Virginia, particu¬ 
larly the alien bill, endeavoring, as he supposed, to deduce from 
thence power to the General Government over aliens. He urged 
that the latter particularly was a proof that the State, and State 
only, had a right to pass such a law, and consequently that Congress 
had not the right. 

But he said the gentleman from Prince George had urged that if 
Congress had not the power of passing such a law, Virginia might 
admit, under the description of aliens, an army of soldiers; for 
instance, Bonaparte and his whole army (if they could get out of 
Egypt). Mr. Foushee asked what idea must that gentleman have 
of the virtue and patriotism of his fellow citizens in urging such an 
argument. He said it might justly be called, in the gentleman’s 
own words, a monstrous idea. He then asked, Where would those 
doctrines contended for by gentlemen in opposition to the resolu¬ 
tions leave us? Would it not be in a mass of consolidation? Could 
not freemen, he said, assert their rights without being charged with 
an intention or wish of dissolving the Government of the United 
States? He then stated the observations of several gentlemen in 
regard to the consequences of opposition, as they termed it. That 
he differed, however, from them in regard to the consequences they 
apprehended, to wit, an invitation of foreign invasion, etc., and he 
contended strongly for the right of free communication and consulta¬ 
tion. He observed that the gentleman from Prince George had 
said that these acts of Congress having been passed by a majority 
of that body, the Members of which had taken an oath to support 
the Constitution of the United States, could we suppose they were 
unmindful of it? The members of this assembly, Mr. Foushee said, 
had taken the same oath, in addition to other obligations. That they 
must, therefore, pursue their duty in discharge of their solemn obli¬ 
gations to this State and the United States, without regard to the 
conduct of other people, although they may have acted also under 
oath. He then recapitulated various arguments of those who ap¬ 
proved the resolutions, and observed it had been said bv the member 
from Prince George that this law (meaning the alien law), although 
passed, would affect ver}^ few comparatively; indeed it would be 
almost as one man only. In this light he [Mr. Foushee] considered 
it so much the more to be dreaded, as an exertion to its repeal might 
not be sufficiently made, and thus a precedent be established. Small 
beginnings, he said, often produced great ends, and required, there¬ 
fore, to be more narrowly watched. He then made a comparison 
between the structure of the Constitution and the universe. The 
latter he represented to be a system composed of atoms. If, said he, 
it were once to be ascertained that we had a power to destroy or 


58 


ALIEN AND SEDITION LAWS. 


annihilate one atom, it would soon be seen that we had a power to 
destroy more atoms; and thereby we should establish a principle 
which might go to the total destruction of the universe. The same 
consequences as to the right of power over the Constitution, he said, 
might ensue, for the power over such was limited. Danger, too, he 
said, had been repeatedly assigned as a cause for those laws. He 
again asked, What would be the consequence of subscribing im¬ 
plicitly to that doctrine? The principle of such a measure, he re¬ 
peated, would be to establish in a designing man or set of men at 
the head of the Government all power, which might be continued 
even when the danger spoken of no longer existed. Precedent, he 
again said, would be thus founded and resorted to, and he urged 
upon us on every occasion by saying the same thing has been done 
before. But if danger alone, added he, had been the cause of passing 
those laws and they could be justified even on that score, that 
danger, he said, was now nearly over or greatly lessened. He then 
referred to historical facts to prove the force of his remarks. These, 
he said, were worthy of being attended to. He again declared him¬ 
self in favor of the resolutions, especially the first, after which he 
observed that he had confined his observations generally to the alien 
law, as he had understood the gentleman from Prince George to say 
early in the debate that the arguments on the sedition law would not 
be gone into until those on the alien law 7 had been urged and de¬ 
cided on. However, he said, he considered the sedition law of much 
the greater consequence of the two, as the evils were by that law, in 
his judgment, much aggravated, and that all the arguments urged 
against the alien law applied with accumulated force against the 
sedition lav 7 , and that he could as yet only account for the selection 
of the alien law in argument as being the most distant from, and 
least to be felt by, the citizens at large. 

He then proceeded to state the purport of the sedition law, the 
construction which had been given to it, and the consequences result¬ 
ing from its operation. And although he admitted that speaking might 
not be expressly enumerated, yet he said the free communication of 
opinion was prevented, and particularly in the mode of writing, 
printing, etc. He then stated the beneficial effects resulting from 
a free communication of sentiment, and the greater benefits still 
flowing, particularly from the freedom of the press, by means of 
which knowledge was most extensively diffused. He made several 
observations in favor of the manly language of the resolutions, par¬ 
ticularly the first, as holding out our express determination to resist 
usurpation by every constitutional mode, as well as invasion, and 
which he thought would be the most effectual means of curing the 
present evil, as well as preventing similar attempts in future. He 
then made a short recapitulation of the unconstitutionalitv and inex¬ 
pediency of those laws; and observed that injustice and deception 
was particularly evident, in his judgment, on the face of the sedition 
law, to wit, four specified acts, “ writing, printing, uttering, arid 
publishing,” independent of other prohibitions, were made punish¬ 
able. That it had been urged those various acts might be justified 
if they contained the truth. He urged in reply that the justificatory 
clause only enumerated two items, “ writing and publishing.” That 
printing and uttering were not in that clause and, therefore, justifi- 


ALIEN AND SEDITION LAWS. 59 

cation could not be pleaded in excuse for a prosecution founded on 
either of these. 

Mr. Brooke arose next and said that he never could consent to 
sanction the passage of resolutions having so alarming and dan¬ 
gerous a tendency as those which had been presented to them by the 
gentleman from Caroline, and before he gave his vote upon the 
subject he would beg leave to state to the committee, without advert¬ 
ing to the particular merits of the laws tln^ were the subject of 
those resolutions, the reasons that would govern him in his vote 
upon that occasion. 

Resolutions such as these, said Mr. Brooke, declaring laws which 
had been made by the Government of the United States to be uncon¬ 
stitutional, null, and void, were in his opinion in the highest extreme 
dangerous and improper, inasmuch as they had not only a tendency 
to inflame the public mind; they had not only a tendency to lessen 
that confidence that ought to subsist between the representatives of 
the people in the General Government and their constituents, but 
they had a tendency to sap the very foundation of the Government, 
by producing resistance to its laws and were in the eyes of all foreign 
nations evidence—fatal evidence—of internal discord in this country 
and of imbecility in our Government to protect itself against domes¬ 
tic violence and usurpation. For these reasons, he said, he was 
opposed to these resolutions and did not hesitate to declare himself 
equally opposed to any modification whatsoever of such resolutions 
that might be intended as an expression of the general sentiment 
upon this subject, because he conceived it to be an improper mode by 
which to express the wishes of the people of this State upon the 
subject. By what mode then, said he, were this assembly to under¬ 
stand and to express the will of the people of Virginia upon the laws 
that had been called in question? By an act of the Virginia Legis¬ 
lature, declaring these laws to be unconstitutional, null, and void? 
No; but by the laws of the General Government, to whom the power 
properly belonged of making these laws, and by which their will had 
been already expressed. The Government of the United States, he 
said, was one organ of the will of the people; the Legislature of Vir¬ 
ginia was another organ of the public will. Those two organs, then, 
of the public will were at variance. One of these organs made laws 
for the Government of the United States; another of these organs, 
the inferior one, declared these laws to be unconstitutional, null, and 
void; and the question then was, which' of these organs were they 
to obey? The Government of the United States, he said, most in¬ 
dubitably, because in the Government of the United States the repre¬ 
sentation of the people of this State is more pure and more equal 
than it is or could possibly be in the State government, under the 
existing State constitution. In the General, Government, said he, 
every 30,000 persons are represented,, but in the State government, 
from the great inequality in the representation under the existing 
State constitution, it was utterly impossible, under existing circum¬ 
stances, by this mode to express the sentiments and wishes of the 
people of Virginia upon the laws that had been called in question. 
In some counties in the State, said he, 1,500 or 2,000 freeholders 
constitute the number of electors who are entitled to but. two repre¬ 
sentatives; in other smaller counties, 150 or 200 freeholders consti¬ 
tute the number of electors who are entitled to the same number of 


60 


ALIEN AND SEDITION LAWS. 


representatives; so that from this apparent inequality in the repre¬ 
sentation, circumstanced as he was, and a number of other gentlemen 
in the house, how could they form any sort of estimate of the general 
will of the people upon the subject of the laws in question. 

In the county of Prince William he knew not what the people 
thought of the laws. The representation from Loudoun, Berkeley, 
Frederick, and many other large counties were in the same situation. 
To what standard th^ji were they to resort in order to ascertain the 
general will upon the subject? To the laws themselves, he said, he 
would again reply, which have been passed by the General Govern¬ 
ment, where we are equally represented, and to whom the authority 
properly belongs by the Constitution. Since the representatives 
of the people in the General Government then, had made these laws, 
as a good citizen he would obey; as a good citizen he valued the Con¬ 
stitution of the United States, which he had sworn to support, and 
which he conceived to be invaded by the resolutions before them; 
and when the people of that part of the country which he had the 
honor to represent,* became so extremely degenerate, so lost to all 
regard for the great advantages and benefits resulting from a con¬ 
nection between the States under the Federal Constitution, as to give 
him instructions to vote for the adoption of resolutions having so 
alarming and dangerous a tendency as those which had been offered 
by the gentleman from Caroline, he should go in mourning for them, 
he should bid adieu to legislation, and seek an asylum in some other 
region of the globe, among a race of men who had more respect for 
peace and order, and who set a higher value upon the blessings of 
good government. But sensible as he was that his constituents 
would have discernment and patriotism enough to think with him 
that the resolutions offered for our adoption by the worthy member 
from Caroline, teem with principles hostile to the very existence of 
the General Government; that they would think with him that any 
attempt in the State legislature to control the operations of the Gen¬ 
eral Government, by the adoption of resolutions inviting the sister 
States to a cooperation in resisting its laws, was equally dangerous 
and improper as it is unnecessary, he should give a negative to these 
resolutions, and before he sat down, beg leave to offer a resolution as 
a substitute for those which had been presented by the member from 
Caroline. He offered it, he said, at this stage of the business, be¬ 
cause the tocsin of rebellion had been that day sounded in the House 
by the resolutions accompanying the governor’s letter from the State 
of Kentucky. The sooner then, he said, our determination not to 
cooperate in resisting the laws of the General Government should 
be announced to that State, the sooner our determination to support 
the American Government should be announced to the nations of 
the earth, the better. And for this purpose he would offer the reso¬ 
lution which he had before referred to. He then read his resolu¬ 
tion, in the following words: 

Resolved, That as it is established by the Constitution of the United States 
that the people thereof have a right to assemble peaceably and to petition the 
Government for a redress of grievances, it therefore appears properly to be¬ 
long to the people themselves to petition when they consider their rights to be 
invaded by any acts of the General Government, and it should of right be 
left to them if they conceive the laws lately passed by the Congress of the 
United States, commonly called the “ alien and sedition bills,” to be uncon¬ 
stitutional, or an invasion of their rights, to petition for a repeal of the said 
laws. 


ALIEN AND SEDITION LAWS. 


61 


After reading the said resolution, Mr. Brooke handed it in to the 
clerk’s table where the same being again read, was laid upon the 
table. 

On motion of Mr. Johnson, the committee then rose, the chair¬ 
man reported progress, asked, and had leave for the committee to 
sit again. 


In the House of Delegates, 
Wednesday , December 19, 1798. 

The house resolved itself into a committee of the whole house on 
the state of the Commonwealth, Mr. Breckenridge in the chair, when 
Mr. John Taylor’s resolutions being still under consideration, 

Mr. Pope arose and said that he was not accustomed to make 
apologies, but that he looked upon it as necessary, after what he had 
said before on the subject. He could assure the committee that what 
he had said at first was not intended as a speech, and he had no 
doubt but that it was so understood by others. The observations 
were of a ludicrous turn, and intended only as an answer of that 
kind to the gentleman from Prince George introducing the French 
into the debate. This he thought not proper, and the object of his 
former remarks therefore was to treat it in a ludicrous manner. 
But on the present occasion, he said, he considered himself as called 
upon by his colleague. 

He would speak therefore while the thing was fresh. And in 
order that he might not, be mistaken in it he had noted the substance. 
He meant not, he said, to go into the subject before them. There 
had been enough he thought in the harvest field already. He him¬ 
self would only glean a little. His colleague had said that he was 
not instructed, but that if his constituents were so degenerate or 
debased, he (Mr. Pope) was not positive which of these terms he 
had used, but it was no matter which, it was the same thing, as to 
instruct him to vote for such resolutions as those which had been 
offered to them by the gentleman from Caroline, that he would go 
into mourning; that in case the resolutions were adopted it would 
be, in his opinion, nothing more than the tocsin of rebellion; and in 
such a case he would go to some other country to seek an asylum. 
Mr. Pope then observed that he would pause to give an opportunity 
for correction if he had misstated anything. But as he was not cor¬ 
rected, he said he would proceed to reason from those observations 
of his colleague' He considered them as applying to himself, being 
one of those in favor of the resolutions; but still he did not believe 
the gentleman had intended them as such. He knew him better. 
However, he said, both that gentleman and the gentleman from 
Frederick, whose coolness and moderation must be admitted, had 
sounded the alarm; they had called the resolutions the tocsin of 
rebellion; they would be drawing the sword as it were, and that we 
might date the destruction of the liberty of the people from the day 
on which they passed. He then proceeded to read the resolutions 
offered by the other side (meaning those offered by Mr. George K. 
Taylor), and to comment on the language of them. The gentlemen 
who were in favor of these he said displayed boldness. Could they 
be afraid then of the resolutions offered by the gentleman from 



62 


ALIEN AND SEDITION LAWS. 


Caroline. There was something in that he did not understand. He 
said he must make a deduction from it. The gentlemen surely 
must be hypochondriac. He compared their case to the conceit of 
Don Quixote about the windmills; otherwise they could not be 
alarmed about our having an army of Frenchmen at our doors. 
His colleague, he said, had observed that we were more equally rep¬ 
resented in Congress than in this assembly. In answer to which he 
asked if the people of New Hampshire could more equally represent 
us than the legislature of this State. He then stated what was the 
usual language of the eastern people in Congress respecting the 
Virginians. They were called by them disorganizes, jacobins, etc. 
He then proceeded to show which of our Members in Congress had 
voted in favor of those laws, and concluded that Mr. Evans was the 
only one; Gen. Morgan and Mr. Machir, as well as he could recollect 
at the time of the passage of the laws, being either at home or on 
their way home. So much then he said in answer to the observations 
of his colleague. He then proceeded t.o answer the observations of 
the gentleman from Frederick in regard to the gentleman from Prince 
George introducing the French into the debate. The gentleman 
from Frederick, he said, seemed to disapprove it. He (Mr. Pope) 
did so, too. He could not imagine how the gentleman from Prince 
George himself could think it proper. And how happened it that 
this gentleman could not, in the course of his reflections, think of 
Ireland, too. But British enormities, he supposed, would not suit 
his purpose. He then proceeded to enumerate them; and afterwards 
adverted to the quotations made from Publius by the gentleman 
from Frederick respecting a resort to be made to the people in such 
a case as the present one. He (Mr. Pope) thought that the legisla¬ 
tures ought to take up the matter first; and the people only in the 
last resort. He stated the nature of the bargain made at the time 
of adopting the Constitution, which was that of the people giving 
up certain rights and reserving the rest to themselves. This, he 
said, was* proved by the twelfth amendment, which he read. He 
then observed that the greater part of the Constitution extended 
to the prohibiting of powers to the States. This amendatory clause 
therefore reserved to them what was not prohibited. He then read 
the resolution offered by Mr. Brooke, and observed that the gentleman 
from Frederick had also acknowledged the people’s right to assemble. 
But how did that right stand? The article securing it he said was 
invaded. He stated an instance of his receiving a wound in his left 
breast; in such case he would be less able to protect himself from 
receiving a wound in the right breast or elsewhere. This he com¬ 
pared to the case of the clause above referred to, and declared that 
our most important rights secured by that clause were destroyed. 
Of what account then would be the right of petitioning? If they 
were to lose the resolutions offered by the gentleman from Caroline, 
he said he would pronounce our liberty to be gone. But whenever 
that was mentioned, he observed that many of the members on the 
other side would frown and spurn at it.* He then made several 
contemplative observations upon the consequences of our rights being 
destroyed, and afterwards observed that he would recur to that part 
of the speech of the gentleman from Prince George, in which he had 
introduced the Goddess of Liberty; upon which Mr. Pope concluded 
his observations in the following words: “ Methinks I heard that 


ALIEN AND SEDITION LAWS. 


63 


gentleman say to this fair goddess, by your name we roused the 
American people, to oppose the tyranny of Great Britain! By your 
name we brought into the field large armies! By your name we 
drove from our country the mercenary troops of George III, and 
established our independence! We have now no further use for you; 
we only meant to change men, not measures.” 

Mr. Daniel said that he stood up to express that opinion which his 
feelings and his judgment compelled him to render on this occasion. 
He said he did not flatter himself that he should be able to afford any 
considerable aid to the discussion or to give very material information 
to the committee, but the importance of the question and the solemnity 
of the appeal which had been made by the people to the assembly, in 
his opinion, required a liberal discussion to be had, that the subject, 
being contemplated in various points of view, might be the better 
understood. He should therefore beg the indulgence of the commit¬ 
tee while he took a short view of the subject. In doing this he said 
he should follow the track which had been led by the gentlemen 
opposed to the resolutions before the committee, beginning with the 

alien act,” so called, and first Avith an examination of the arguments 
of the gentlemen from Prince George and Frederick. He said it 
must have been observed that in the progress of their observations 
these gentlemen had assumed three principles which could not be 
yielded to them, to Avit: That the Government of the United States 
was a consolidated GoA r emment, that the doctrine of implication sup ¬ 
plied it with all necessary powers, and that the necessity and expedi¬ 
ency of any measure authorized its adoption. These principles, he 
said, were assumed in aid and maintenance of their arguments, 
although they were not stated in express terms. But it Avould be 
easy to show that the Government was not a consolidated Government 
in principle, hoAvever it might be in practice; that the doctrine of 
implication could not extend the powers of Government beyond the 
specific grant of the Constitution; and that no necessity or expediency 
ought to authorize a Auolation of the Constitution. 

The Constitution of the United States,- he said, Avas a deputation 
of poAver from the several States for the purposes of a Federal Gov¬ 
ernment, wherein the several States were sovereign and independent 
as to powers not granted and the Federal Government sovereign and 
independent as to those powers which were granted. The doctrine of 
implication could not increase the powers of the Federal Government, 
but could only go, as it was expressed by the Constitution, to author¬ 
ize it to make such laws as might be necessary to carry the powers 
granted into effect. Having premised these things, he proceeded to 
examine the arguments which had been urged in favor of the alien act. 

The gentleman from Prince George, he said, prefaced his observa¬ 
tions on this subject by saying that this was an act of the Congress of 
the United States in which were combined the wisdom and delibera¬ 
tion of all America, that the determination of this combined wisdom 
and deliberation was the strongest evidence of the constitutionality 
of the act, and that it was therefore dangerous for us to interfere on 
this subject. Mr. Daniel hoped this mode of reasoning Avould make 
no impression on the committee. He said it was an argument that 
would equally apply to every possible measure of the Federal Govern¬ 
ment ; and by this rule any act of the Government, however palpably 
violating the Constitution and prostrating the rights and liberties of 


64 


ALIEN AND SEDITION LAWS. 


the people, might be maintained. It might be said of every act that 
the combined wisdom and deliberation of Congress had sanctioned it. 

The objections which that gentleman made to the mode of remon¬ 
strance adopted by the resolutions, he said, had already been so hand¬ 
somely and conclusively answered by a worthy member [Mr. Mercer] 
who preceded him in this discussion that there was no necessity for 
him to give them any attention. 

The same gentleman, he said, in maintaining the constitutionality 
of the alien act had observed that aliens had those rights only in the 
United States which they have in other countries by the law of 
nations, and produced Yattel to show that the sovereign of any 
nation hath a right to prohibit the entrance of strangers into its 
territory, to prescribe the condition upon which they may enter, to 
command their departure when necessary—in short, that it was mat¬ 
ter of grace and not of right that strangers were suffered to enter the 
territories of any Nation. 

If this doctrine, said Mr. Daniel, be admitted true in the extent in 
which the worthy member quoted it, it was easily seen and could not 
be overlooked that the authority applied to a consolidated Govern¬ 
ment, where there was but one sovereign of the nation, but it could 
not apply to the United States, where there exist the several sov¬ 
ereignties of the State governments and the sovereignty of the Fed¬ 
eral Government; of the State governments as to powers not granted, 
of the Federal Government as to powers which are granted in the 
Federal Constitution. 

But, said Mr. Daniel, this power over strangers, resulting from the 
right of domain to every nation and which every independent nation 
will exercise, does rest somewhere among the American people. It 
remained then to be inquired where this power was lodged in the dis¬ 
tribution of powers among the several sovereignties which existed in 
the United States in the manner which he had before stated. The 
Constitution, he said, gave the answer. By section ninth, article 
first, it was declared that “ the migration or importation of such per¬ 
sons as any of the States now existing shall think proper to admit 
shall not be prohibited by the Congress prior to the year 1808.” 
Thus the power of admitting aliens into its territory was left to 
the several States respectively. It followed then that each State had 
the right to prescribe the terms and conditions upon which aliens 
should be admitted and was the judge when those terms and condi¬ 
tions were violated. Aliens, said he, are admitted into the territory 
of a nation or State upon certain conditions. They could not, there¬ 
fore, be sent off or commanded to depart without injustice so long as 
they observed the conditions upon which they were admitted. That 
power, which was the sovereign judge of the propriety of admitting 
aliens into its territory, must be the sovereign judge of the necessity 
and justice of sending them away. This necessity and justice could 
not exist so long as the conditions upon which they were admitted 
remained unbroken. Each State had this power over its respective 
territory by the clause of the Constitution which he had just recited. 

Each State, said he, was therefore the sovereign judge of the pro¬ 
priety and justice of commanding aliens and strangers to depart 
from the limits of its respective territory. 

But, said he, the gentlemen contend that this article of the Con¬ 
stitution can not apply, and here they differ in their construction, the 


ALIEN AND SEDITION LAWS. 


65 


gentleman from Frederick maintaining that this clause related only 
to the importation of slaves, the gentleman from Prince George in¬ 
sisting that this clause does only secure to the States the right of 
admitting aliens, but does not declare that Congress shall not have 
power to send them away. He said he would examine the objections 
as they stood in order. With respect to the opinion of the member 
from Frederick (Mr. Magill), the words of the clause “migration 
or importation ” were, from their very terms, a sufficient refutation, 
and he believed if they were to seek the reason why this clause was 
inserted in the Constitution they should find that the Southern States 
insisted upon it, not only to secure their right of continuing the 
abominable slave trade, but that they might also have it in their 
power to encourage and effect the settlement of their back lands. 
The gentleman, he said, had urged no reason of his own in support 
of the opinion which he gave, but read to the committee parts of 
the speeches of Mr. Mason and Mr. Madison delivered in the Vir¬ 
ginia convention when the Constitution was under discussion. But, 
said Mr. Daniel, when this document was examined it would be found 
that those gentlemen, in the parts of their speeches to which the 
worthy member referred, did simply state that the right of con¬ 
tinuing the slave trade was secured by this clause to the Southern 
States and that they did not advance any sentiment or idea which 
could, in the remotest degree, maintain the opinion that this clause 
related to the “ importation of slaves only and did not relate to the 
migration ” of aliens into the several States. 

With respect to the objection of the member from Prince George 
(Mr. G. K. Taylor) that although this clause secured the right of 
admitting aliens to the several States, yet it did not deny the right 
of Congress to send them away, it might be observed that the objec¬ 
tion itself admits the sovereign power of the States to permit 
strangers to enter their respective territories. He said he had before 
endeavored to prove that this power involved necessarily the rights 
of prescribing the conditions upon which aliens might enter and of 
controlling them after they had entered the territory of any par¬ 
ticular State. But to meet the objection more pointedly, he would 
take a view of the powers of any particular State, unconnected with 
and separated from the other States. Virginia, for instance, inde¬ 
pendent of her federation and union with the other States, would 
be completely sovereign and have all possible power and right on 
this subject to admit aliens into her territory and to control and 
send them away at pleasure, regarding only the rules prescribed by 
the law of nations. He would now ask what power and right Vir¬ 
ginia had given up on this subject, in her connection with the other 
States, by the Federal Constitution? It was yielded by the gentle¬ 
man that she had power and right to admit aliens into her territory. 
He again demanded had she granted the power and right of send¬ 
ing them away to the General Government? But, said he, it is de¬ 
clared by the twelfth amendment to the Constitution that “ the 
powers not delegated to the States by the Constitution nor prohibited 
by it to the United States are reserved to the States respectively or 
to the people ”; therefore he insisted this power of sending away 
aliens from the territories of the particular States, not being dele- 

52068—S. Doc. 873, 62-2-5 


66 


ALIEN AND SEDITION LAWS. 


gated to the United States by the Constitution, remained with Vir¬ 
ginia, as it respected the limits of her own particular territory. 

But, said the gentleman from Prince George, Mr. Daniel continued, 
this article of the amendments must be understood that whatever is 
not expressly reserved to the States is given up to the Federal Gov¬ 
ernment if necessary. Besides the perversion of the plain meaning 
of this article by this construction, said Mr. Daniel, the gentleman 
should have remembered that he stated in his argument that a con¬ 
struction which leads to absurdity was not true. This construction 
would make this article of the amendments answer no purpose. It 
was therefore, he joined with the gentleman, absurd and untrue. 

The powers of the Federal Government being expressly defined, 
“ it was true, as a general principle,” that powers not granted were 
retained by the States, said Mr. Daniel; but so jealous were they of 
their rights and so fearful of the greedy doctrine of implication 
that this amendment was recommended and annexed to the Consti¬ 
tution for the purposes of security and safety. 

The gentlemen, he said, finding it impossible to maintain their 
ground by the aid of any clause of the Constitution wherein power 
was expressly delegated, had sought the assistance of several gen¬ 
eral phrases and expressions such as “ to provide for the general 
welfare, to repel invasions, to make laws necessary to carry the fore¬ 
going powers into effect,” by which they endeavored to maintain 
that the General Government has other powers than those expressly 
given by, and enumerated in, the Constitution, and unlimited pow r er 
as to all subjects of a general nature. If this be true, said he, if 
these general expressions and clauses give general and unlimited 
power, the special enumeration of power in the Constitution was 
absurd and useless. Those sage and patriotic politicians who formed 
the Federal plan of Government puzzled themselves to no purpose 
in defining, enumerating, and limiting power; they had nothing to 
do but to organize the Government, say there should be an executive, 
judicial, and legislative body, prescribe the mode in which the mem¬ 
bers of the several departments should be brought into office, and 
declare that “ they should have power to provide for the general 
welfare.” This would be precisely such a Constitution as gentlemen 
contended was our Federal Constitution, in which the powers of the 
several branches of the Government were so specially enumerated, 
limited, and defined. And it was, Mr. Daniel said, a willful and 
studied design that misapplied these general terms and clauses of 
the Constitution, for they are necessarily explained by the special 
grants of power; they must be understood that “ Congress shall pro¬ 
vide for the general welfare” according to the Constitution of the 
United States and the powers therein granted. “ Congress may 
repel invasions,” according to the Constitution and the powers therein 
granted. “ Congress shall have power to make all laws which shall 
be necessary and proper for carrying into execution the foregoing 
enumerated powers; ” not to increase and extend their authority, 
but to carry into effect those powers which are enumerated in the 
Constitution. 

He said he presumed enough had been said in answer to the gentle¬ 
man’s arguments in favor of the rightful power of Congress to legis¬ 
late on this subject; he would now proceed to examine the arguments 
which had been urged with an intent to maintain the opinion that 


ALIEN AND SEDITION LAWS. 


67 


the trial by jury was not violated by the alien act. The gentleman 
from Prince George had said that aliens were not entitled to a trial 
by jury because they were not parties to the Constitution, were under 
no obligations to the Government, and that no duties could be de¬ 
manded of them; that citizens alone had a right to a trial by jury 
because they were parties to the Constitution, which secured that 
right, and on account of their obligations and duties to the Govern¬ 
ment. 

Mr. Daniel said if the worthy member had have been as attentive 
to the authority of Yattel on this point as he was when he hoped to 
draw something from it to support him, he would have found the 
reverse of almost everything he stated relative to aliens to be true ; 
he would have found that they had rights to be protected and duties 
and obligations to discharge ; that they were bound to obey the gen¬ 
eral laws of the land, and that they had a right to be tried according 
to the general laws of the land. He would have found that “ in 
countries where a stranger may freely enter (as in this), the sov¬ 
ereign is supposed to allow him access only upon this condition, that 
he be subject to the laws, I mean the general laws made to maintain 
good order, and which have no relation to the title of citizen or sub¬ 
ject of the State. The public safety, the rights of the Nation and 
of the prince necessarily require this condition; and the stranger 
tacitly submits to it as soon as he enters the country, as he can not 
presume upon having access upon any other footing. The empire 
has the right of command in the whole country and the laws are not 
confined to regulating the citizens among themselves, but they de¬ 
termine what ought to be observed by all orders of people through¬ 
out the whole extent of the State. 

In virtue of this submission, the strangers who commit a fault 
ought to be punished according to the laws of the country.” (Yattel, 
Bk. 2d, ch. viii, p. 267, secs. 101 and 102.) And again, page 268, 
section 104, he would have found that, “ the sovereign ought not to 
grant an entrance into his State to make strangers fall into a snare; 
as soon as he receives them he engages to protect them as his own 
subjects, and to make them enjoy, as much as depends on him, an 
entire security,” according to the general laws of the land. He 
trusted that the committee were sufficiently satisfied that aliens have 
rights, which are under the protection of the laws of that State 
wherein they reside; that they have duties and obligations to dis¬ 
charge to that State, and that if they commit a fault they have a 
right to be tried and punished according to the general laws of that 
State. The worthy member from Prince George, as if he foresaw 
his defeat on this ground, took refuge under that clause of the 
alien act which provides that “ an alien may prove the falsity of 
the charge.” Mere mockery of justice, said he, to prove the falsity 
of suspicion! Prove the falsity of being suspected of what he did 
not know, of what he was not informed! There was no rule estab¬ 
lished by observing which he could avoid suspicion; there was no 
rule directing what shall be done and what shall be avoided by the 
alien; he could only know that it was dangerous for him to become 
suspected by the President of what he did not know, and that he 
might if he could prove the falsity of a suspicion to which some 
conduct of his, but what particular conduct he could not tell, may 
have given birth. He then observed that the same gentleman, 


68 


ALIEN AND SEDITION LAWS. 


quitting all constitutional principles, appealed to the doctrine of 
necessity, and insisted that it was absolutely necessary to compel 
dangerous aliens to depart from our country, and that the Presi¬ 
dent of the United States ought to be authorized to enforce their 
departure. But, Mr. Daniel said, he would insist that some rule 
should be established, instead of the bar of suspicion, to decide who 
were and who were not dangerous aliens. 

He should require proof that the Constitution authorized Com 
gress to invest the President with such a power; this had not been 
shown; it could not be shown. He contended, therefore, that this 
power was lodged in the several States, respectively, and wisely 
lodged. For in case of emergency each State had it in its power 
to act immediately before the President could be informed of the 
danger. The authority of each State was always at hand, could be 
immediately applied to, and would be readily inclined to take effi¬ 
cient measures for the safety of its citizens. The member from 
Prince George, he said, had observed that such a provision as the 
one marked by the alien act was necessary' to guard against the 
French and their intrigues. If so, he said, the States were compe¬ 
tent to make the provision. He believed they were as much dis¬ 
posed as any other body would be to adopt all necessary and con¬ 
stitutional measures. He hoped that Virginia had virtue and 
patriotism sufficient to view with indignation, and to suppress with 
vigor, any intrigues of a dangerous nature, whether meditated by 
France or any other nation. But in adopting such a measure he 
wished to observe the laws of nations. He could not consent, under 
the pretense of guarding against aliens who were citizens of France, 
to violate the rights of other aliens among us, who might be citizens 
of any other nation. He contended that the alien act was general, 
and equally applied to all aliens, whether citizens of France or 
subjects of another power. He stated a case from the law of nations 
to prove that such a regulation, if made at all. should be particularly 
directed against the citizens or subjects of that nation from whom 
danger is apprehended. 

The member from Prince George, he said, had read a clause from 
the Virginia laws, which he assimilated to the alien act, passed by 
Congress, and from which he argued the right of Congress to pass 
the law in question. He requested that the law might again be 
read. (It was accordingly read by the clerk in the following words: 
“It shall and may be lawful for the governor, with the advice of 
the council of state, to apprehend and secure, or cause to be appre¬ 
hended and secured, or compelled to depart this Commonwealth, all 
suspicious persons, being the subjects of any foreign power or State, 
who shall have made a declaration of war against the said States, 
or from whom the President of the United States shall apprehend 
hostile designs against the said States, provided information thereof 
shall have been previously received by the Executive from him.”) 
Mr. Daniel then said that the law which had been read pursued the 
law of nations; and clearly recognized the distinction which he had 
before laid down, that it did not authorize the governor to appre¬ 
hend and send away all aliens whom he might suspect; but such 
suspicious aliens only whose nation was at war with these States, or 
from whose nation hostilities were apprehended. That this law 
was not general, but particularly directed against those aliens whose 


ALIEN AND SEDITION LAWS. 69 

nation was at war with this country, or from whose nation ihere 
Were reasons to expect war. 

That this law, instead of furnishing an argument in favor of the 
right of Congress to pass the law in question, was a strong proof 
that the Legislature of Virginia at the time of its passage entertained 
the opinion that the power to regulate this subject belonged to the 
State. He said it was remarkable that the gentleman from Prince 
George on this occasion, following the example of the present admin¬ 
istration, had indulged himself in declamation against the intrigues 
of the French Nation; had inveighed with the utmost bitterness 
against their policy and injustice; had threatened us with the horrors 
of another Santo Domingo; that our slaves would be let loose upon 
us; that our wives, our daughters, our sisters, would be forced into 
the rude embraces of the ruthless negro, who would butcher them 
before our eyes immediately after having satisfied his lustful appetite. 
Mr. Daniel said this language was addressed to the feelings and pas¬ 
sions and not to the understanding of the committee. For his part 
he should consider the subject upon principle. To the intrigues of 
France he opposed the virtue and patriotism of our citizens in gen¬ 
eral, the vigilance and activity of our officers and magistrates, and 
the wisdom of the State legislature to observe all necessary measures, 
an evidence of which was seen in the law which had been read; that 
invectives against France could not prove the constitutionality of the 
law in question; that if they were intended to excite the indignation 
of the committee against that Republic the gentleman had spent his 
time in vain, for that the injustice and rapacity of that Nation, with¬ 
out the aid of the gentleman’s elocution, had already inflamed the 
mind of every member into bitterness and resentment. But amid this 
universal glow of indignant feelings he wished to see our glorious 
constitutions saved inviolate. “ Secure me in this point,” said Mr. 
Daniel; “save the Constitution of my country from innovation and 
violence and I will join hands with the gentleman and swear eternal 
enmity to France and all other nations of the earth who shall be 
hostile to the liberty and independence of the United States.” But, 
said he, it would seem as if the injustice of France to other nations, 
her base attack upon our neutral rights and undefended unoffending 
commerce, had so affrighted gentlemen that they were ready to aban¬ 
don those principles which were once so dear to all America. In¬ 
glorious sons, however, were they, who for distant and feeble alarms 
would forsake those principles and those rights which our forefathers 
sought at every hazard and maintained amidst the threatening ruin 
of war and bloodshed. In vain, said he, are we told that the French 
Government is a military despotism which proscribes the liberty of 
the press and carries its measures by force of the bayonet. It can 
not reconcile us to like measures in "the United States. It can not 
reconcile us to a sedition law and to a standing army, which will 
probably produce the same miserable effects here as they have done 
in France. It can not prove to us the constitutionality of the acts in 
question. 

He said before he took leave of this part of the subject he would 
take notice of a charge which had been made by the gentleman from 
Frederick against those who advocated the resolutions that they ad¬ 
dressed arguments to the humanity of the committee. He would 
reply that the opposers of the resolutions addressed arguments to the 


70 


ALIEN AND SEDITION LAWS. 


fears of the committee; that admitting the charge to be true (which 
was by no means the case) it was much more honorable both for 
those who make the address and those who are addressed that appli¬ 
cation be: made to the feelings of humanity rather than to those which 
are excited by fear and alarm; that the gentleman himself had threat¬ 
ened us with confusion and darkness and forboded the hasty setting 
of the sun of American glory if we adopted the resolutions, and his 
coadjutor from Prince George had invaded our country wfith a 
French army and slaughtered our best and dearest friends before 
our eyes. This mode of argument, however unfair, was by no means 
novel. When our gallant forefathers conceived the mighty design 
of declaring the American world independent and free the same doc¬ 
trine of terror and alarm, of dangers from abroad, and mischiefs and 
ruins incalculable within was pressed and repeated, but resting firm 
on principle they steadily pursued truth and achieved the glorious 
deed of American independence. As then, so now, he hoped, this 
doctrine of terrorism would make no impression, but that the com¬ 
mittee would consider the subject upon principle and determine upon 
its merits. 

Mr. Daniel observed that in the course of the observations which 
he had made to obviate exceptions which gentlemen had taken to the 
resolutions proposed it was to be discovered that his principal objec¬ 
tions to the alien act were that it violated the sovereignty of the State 
governments; that it blended legislative, executive, and judicial 
powers; that it violated the right of trial by jury, contrary to the 
Constitution. 

With respect to the first objection, he had shown by the foregoing 
arguments that the State governments w:ere sovereign as to those 
powers not granted to Congress, and this subject, not only not being 
granted but prohibited Congress by the ninth section, first article, of 
the Constitution, it followed that as to this subject the States were 
severally sovereign, and that any attempt by Congress to legislate on 
this subject within the limits of any particular State was an attack 
upon the sovereignty thereof. 

As to the second objection, that the alien act blended legislative, 
judicial, and executive powers, it might be observed that legislative 
power is the authority to prescribe a rule of conduct. This rule is 
the act of the legislative power, declaring what shall be done and 
what shall be avoided. The alien act, said Mr. Daniel, does not 
declare what the alien shall do and what he shall avoid; it does not 
declare a rule of conduct which he can know and observe. The 
President has the power to prescribe this rule of conduct for the 
alien by bringing him to the bar of suspicion if he does not observe 
a line of conduct which, not being designated by the alien act, is only 
known and subject to the President’s will. But to declare this rule 
of conduct is a legislative act. The President, by this law, has 
effectually the right to prescribe this rule; therefore, he contended, 
that the President was invested with effectual legislative power. Fie 
certainly had the power to judge when the alien came within the rule 
prescribed bv his suspicion, and in this, as in all other cases, he was 
invested with executive power. Thus in one person, contrary to the 
Constitution, was to be seen the lawgiver, judge, and executioner. 

With regard to the third objection, that the alien act infringed the 
right of trial by jury, he referred the committee to the seventh article 


ALIEN AND SEDITION LAWS. 


71 


of the amendments to the Constitution, where it is found that “ no 
person shall be deprived of his life, liberty, or property without due 
process of law.’* He contended that an alien was a person who had 
rights of life, liberty, and property, and was therefore within the 
provision of this part of the Constitution. He had before shown 
that by the law of nations an alien had the right of being tried 
according to the general laws of the land. It was here evident that 
an alien was a person who could not be deprived of his “ liberty ” 
without due process of law. It remained, then, to be inquired what 
was this “ due process of law ”? This “ due process of law,” he said, 
was to be found in the seventh and eighth articles of the amendments 
to the Constitution, that “ no person shall be held to answer an accu¬ 
sation unless on a presentment or indictment by a grand jury that 
“ the accused shall enjoy the right to a speedy and public trial by an 
impartial jury of the State and district wherein the crime shall have 
been committed; to be informed of the nature and cause of the accu¬ 
sation; to be confronted with the witnesses against him; to have 
compulsory process for obtaining witnesses in his favor; and to have 
the assistance of counsel for his defense.” This mode of trial pointed 
out by the Constitution, this “ due process of law,*’ was disregarded 
and entirely abolished by the alien act. Having taken this short 
view of the alien act, he said he would proceed to consider the sedi¬ 
tion law, as it Avas commonly termed. He could have wished that 
gentlemen had given their opinions freely on this subject. The gen¬ 
tleman from Prince George, he said, had given some apology why he 
declined the discussion. He had committed himself a day or two 
past by declaring that the sedition law was already sufficiently 
odious. It was therefore, Mr. Daniel said, he supposed the gentle¬ 
men thought it best not to meddle with it. He would receive the 
gentleman’s apology and proceed to examine the law according to 
his own ideas on the subject, in which he would occasionally take 
notice of what the gentleman from Frederick had urged. 

He stated that the acts enumerated in the first section of the sedi¬ 
tion law as offenses to be punished with heavy fines and long impris¬ 
onment were “ to combine or conspire together with intent to oppose 
any measure, or to impede the operation of any law of the United 
States ”; or to intimidate any officer under the Government of the 
same from undertaking, performing, or executing his trust or duty, 
or to counsel, advise, or attempt to procure any insurrection, riot, 
unlawful assembly, or combination, whether such counsel or advice 
had effect or not. The offenses enumerated in the second section of 
said law, he said, were “to write, print, utter, or publish, or to cause 
the same to be done, or to aid in Avriting, printing, uttering, or pub¬ 
lishing, any false writings against the Government, the President, or 
either House of the Congress of the United States, with intent to 
defame the Government, either House of Congress, or the President, 
or to bring them, or either of them, into disrepute, or to excite 
against them, or either of them, the hatred of the people, or to excite 
any unlawful combination for opposing any law or act of the Presi¬ 
dent of the United States, or to defeat any such law or act.” These 
were the provisions of the act. The provisions of the Constitution 
were: “Congress shall make no law respecting an establishment of 
religion or prohibiting the free exercise thereof: or abridging the 
freedom of speech or of the press; or of the right of the people 


72 


ALIEN AND SEDITION LAWS. 


peaceably to assemble and to petition the Government for a redress 
of grievances.” 

Third article of amendments to the Constitution. He requested 
gentlemen to read, the one and the other, to compare them, and re¬ 
concile them if possible. He was one of those who believed that the 
first clause of the law would in its operation effectually destroy the 
liberty of speech; and the second clause did most completely annihi¬ 
late the freedom of the press. “ To combine, conspire, counsel, and 
advise together ” was a natural right of self-defense belonging to 
the people; it could only be exercised by the use of speech; it was a 
right of self-defense against the tyranny and oppression of govern¬ 
ment ; it ought to be exercised with great caution, and never but upon 
occasions of extreme necessity. Of this necessity the people are the 
only judges. For if government could control this right, if govern¬ 
ment were the judge when the necessity of exercising this right has 
arrived, the right never will be used, for government never will judge 
that the people ought to oppose its measures, however unjust, how¬ 
ever tyrannical and despotically oppressive. This right, although 
subject to abuse, like many other invaluable rights, was nevertheless 
essential to and inseparable from the liberties of the people. The 
warmest friend of any government would not contend that it was 
infallible. The best of governments may possibly change into 
tyranny and despotism. Measures may be adopted violating the 
Constitution and prostrating the rights and principles of the people. 
He hoped never to see the time, but if it should so happen, no man 
would deny but that such measures ought to be opposed. But, he 
would ask, how they could be effectually opposed without the people 
should “combine, conspire, counsel, and advise” together? One man 
could do nothing. This right of adopting the only efficient plan of 
opposition to unconstitutional, oppressive, and tyrannical measures 
whenever they should occur he hoped never would be given up. This 
right had been well exercised on a former occasion against England 
and it would'probably be well used again if our liberties were suffi¬ 
ciently endangered to call forth its exertion. But for the spirited 
and energetic exercise of this right, but for the “ combining, conspir¬ 
ing counseling, and advising” together of the American people 
these United States, now independent and free, would have remained 
under the tyrannical and despotic domination of the British King. 
It had been said that this doctrine leads to anarchy and confusion, 
but, said Mr. Daniel, this doctrine gave birth and success to our 
Revolution, secured our present liberty and the privileges consequent 
thereupon. The contrary doctrine, said Mr. Daniel, leads to passive 
obedience and nonresistance, to tyranny and oppression, more cer¬ 
tain and more dangerous. If a measure was unpopular and should 
give discontent it would be discussed, if it should thereupon be found 
to be tolerable it would be acquiesced in. If, on the contrary, meas¬ 
ures should be adopted of such dangerous and destructive tendency 
that they ought to be opposed, he would ask how this could be done 
but by the means which are forbidden in the first section of the law 
in question? These were the only means by which liberty, once 
trampled down by tyrants and despots, could be reinstated," and if 
the General Government continued its rapid progress of violating 
the Constitution and infringing the liberties of the people the time, 


ALIEN AND SEDITION LAWS. 73 

he feared, was hastening on when the people would find it necessary 
again to exercise this natural right of defense.* 

Mr. Daniel said he would now turn his attention to that part of 
the law which affects the freedom of the press, in which the Consti¬ 
tution was most palpably and most dangerously infringed. On this 
subject, he said, the gentleman from Frederick had contended that 
the Constitution was not violated, that the common law was a part 
of the Constitution, and that the offenses enumerated in the act were 
always punishable at common law. If this be the fact, said Mr. 
Daniel, the law in question is nugatory and the clause of the Con¬ 
stitution on this subject, which had been read, was of no effect. 
By the gentleman’s common law, which he had read, offenses against 
the King and his Government were precisely such as were enu¬ 
merated as offenses in this law against the President and Govern¬ 
ment of the United States, substituting the word “ President ” in the 
latter case for the word “ King ” in the former. These offenses 
might be “ by speaking or writing against them or wishing him (the 
King in England and the President in America) ill, giving out scan¬ 
dalous stories concerning them (the King and his Government in 
England and the President and his Government in America), or 
doing anything that may tend to lessen him (the King or President, 
as the case may be) in the esteem of his subjects, weaken the Govern¬ 
ment, or raise jealousies among the people.” Blackstone’s Com¬ 
mentaries, page 123. When our sedition law was so like the law of 
England he did not wonder that the gentleman had supposed that 
the law of England was in force here, one being the copy of the other 
with the necessary change of names and some other trivial circum¬ 
stances, nor did he wonder that the gentleman should say, in con¬ 
formity to that authority, that “ the liberty of the press, properly 
understood, is by no means infringed or violated ” by such regula¬ 
tions, u but consists in laying no previous restraints upon publica¬ 
tions,” and is otherwise “ licentiousness.” 

Blackstone, page 151, that a printer may publish what he pleases, 
but must answer the consequence if a certain set of men shall adjudge 
his writings to contain “ dangerous and licentious sentiments.” If 
this be true, he said, he would be glad to be informed for what pur¬ 
pose was it declared by the Constitution that “ the freedom of the 
press should not be restrained,” and how we were more free in the 
United States than the people of any other nation whatsoever? The 
most oppressed of Europe; the slaves and subjects of the most des¬ 
potic power on the earth, he said, had the right to speak, write, and 
print whatever they pleased, but were liable to be punished after¬ 
wards if they spoke, 'wrote, or printed anything that was offensive 
to the Government; that there was very little difference as to the 
liberty of the press whether the restraints imposed were “ previous ” 
or subsequent to publications. If the press was subjected to a polit¬ 
ical licenser, the discretion of the printer would be taken away, and 
with it his responsibility, and nothing would be printed but what 
was agreeable to the political opinions of a certain set of men; 
whereas subsequent restraints have the same operation by saying 
if you do “ write, print, utter, or publish ” anything contrary to the 
political opinions, reputation, or principles of certain men you shall 
be fined and imprisoned. In vain, he said, were we told that the 
accused may prove the truth of his writings or printing, and that 


74 


ALIEN AND SEDITION LAWS. 


we are only forbidden to write or print false facts. The truth was y 
that it was not the facts but the deductions and conclusions drawn 
from certain facts which would constitute the offense. If a man 
was to write and publish that the Congress of the United States had 
passed the alien and sedition acts, that the provisions of the said 
acts were in these words, reciting the laws as they are; that the Con¬ 
stitution was in these words, reciting the provisions of the Constitu¬ 
tion truly, and conclude that the said acts violated the Constitu¬ 
tion ; that the Congress and the President, in enacting the same, had 
assumed powers not granted to them, and had encroached upon the 
liberties of the people, who ought to take measures “ to defeat ” these 
laws and this “ act of the President.” Here the facts stated that 
the laws had been passed, and that the Constitution was in terms 
stated, could be proved, and would not constitute the offense, but the 
inference from these facts that the Congress in enacting the said 
laws had violated the Constitution, assumed powers not delegated 
to them, and usurped the rights and liberties of the people, in which 
usurpation the President had joined, would certainly have a tend¬ 
ency “ to defame the Government, the Congress, and the President, 
and to bring them into disrepute and hatred among the people,” and 
would therefore constitute the offense. The inference or conclusion 
from certain facts might be true or not and was mere matter of 
opinion. It was opinion then, political opinion, which was the real 
object of punishment. The deduction made from the facts just 
stated, he said, was in his opinion true, the consequence of which was 
that the Congress and President of the United States had not his 
confidence; with him they were in “disrepute.” But he could not 
prove that the opinion was true, as a fact; he could offer those rea¬ 
sons which convinced his mind of its truth, but they might not be 
satisfactory to a jury summoned with a special regard to their polit¬ 
ical opinions, or to a judge of the United States, most of whom had 
already pronounced their opinion on the subject, either in pamphlets 
or political instead of legal charges to the grand juries of the sev¬ 
eral circuits of the United States, thus prejudging a constitutional 
question, which they knew would be made, if ever the law was 
attempted to be carried into effect. 

He said he would state one more case to exemplify his opinion. 
If at the time of British oppressions, when the Parliament of Eng¬ 
land boldly implied the right to make laws for and to tax the Ameri¬ 
can people without representation, any man had by writing main¬ 
tained that representation and taxation were inseparable and that it 
was an usurpation and assumption of power by Parliament to impose 
taxes on the American colonies, who were not represented in Parlia¬ 
ment, the fact here stated would not offend, because true; but the 
conclusion, the charge of usurpation, made upon the British Govern¬ 
ment, would certainly have a tendency to bring it into “ disrepute 
and hatred ” among the people, as it did most effectually in America, 
and would have constituted the offense. This opinion, though now 
clearly admitted to be true, was then new and could not be proven 
true to an English judge and jury, for they were so impressed with 
its falsity that the nation undertook and carried on a bloody and ex¬ 
pensive war to correct its error. He concluded that the provisions of 
this act abridged and infringed the liberty of the press, which at the 
time of the adoption of the Constitution had no other restraint than 


ALIEN AND SEDITION LAWS. 


75 


the responsibility of the author to the individual who might be in¬ 
jured bv his writing or printing; that they destroyed all inquiry 
into political motives, silenced scrutiny, weakened the responsibility 
of public servants, and established political and executive infalli¬ 
bility. 

That the solicitude discovered by the Government to defend itself 
against the attacks of its own citizens was an evidence that its acts 
would not deserve their confidence and esteem; that the solicitude 
thus expressed by threats of fine and imprisonment, to keep the 
President for the time being from coming “ into disrepute,” was 
evidence of a fear that a comparison of motives and views would 
prove favorable to his competitor and was calculated to keep the 
real merits of competition out of view, inasmuch as the merits of 
one of the proposed candidates could not be insisted on to advantage 
without exposing the demerits of the other, which would tend to 
bring him “ into disrepute.” And if the one to whom the want of 
merit should be ascribed should be President for the time being, thus 
to bring him into “ disrepute ” would be to bring the person dis¬ 
cussing the subject into the pains of fine and imprisonment. 

It had been contended, said Mr. Daniel, by the gentleman from 
Frederick, that the adoption of the resolutions would be an infringe¬ 
ment of the right of the people to petition.' He, Mr. Daniel, would 
state that this right might be exercised by an individual, by an 
assemblage of individuals, or by the representatives of the people, 
which last mode was preferable when the sovereignty of the State, 
as well as the appropriate rights of the people, was attacked, as in 
the present case. He conceived, however, that the law in question 
had very much abridged the right of the people to petition and re¬ 
monstrate. The necessity and propriety of petitions and remon¬ 
strances could not be seen, but by discussion the right itself could 
not be effectually used, without “ counseling and advising together.” 
Three or more persons would constitute an “ unlawful assembly,” 
for it would be easily said that they were unlawfully assembled 
when they intended, by discussing certain acts of the President or 
laws of the Government, “ to defeat ” the same by inducing the 
people to petition and remonstrate; or, if the same were not defeated 
by virtue of such petition and remonstrance, to bring the Govern¬ 
ment and President into “ disrepute,” for continuing such acts and 
laws in operation, against which the people had petitioned and 
remonstrated. But those things being offenses, and so enumerated 
in one clause of the law, an assembly of three or more persons, con¬ 
templating the objects, just described, would be “ unlawful,” within 
the purview of the act, and subject to fine and imprisonment. Again, 
he said, the dangerous and ruinous tendency of certain measures 
might not be observed by the people of any particular district. A 
few, however, might wish a petition to be made to remove the 
grievance of the measures, in order to which they would individually 
address the district by writing, in which they would expose and cen¬ 
sure the evil tendency of the said measures to. excite the people to 
petition and remonstrate “to defeat” the same, or necessarily to 
bring the friends of the continuance thereof into “ disrepute.” This 
would be an offense within the purview of the second clause of the 
law. Thus, said he, by one act we have seen that that clause of the 
Constitution which secures the right of speech, of the press, of peti- 


76 


ALIEN AND SEDITION LAWS. 


tion, of the free exercise of religious opinion to the people, is pros¬ 
trated in every respect, except as it relates to religion. And this last 
and most invaluable right he had no doubt would soon be invaded, 
inasmuch as he had been informed that the friends of the present 
measures had already begun to insinuate that an established church 
was one of the strongest props to government,” and inasmuch that 
the same reasons might be urged in its favor as in favor of the 
abridgment of the liberty of the press. But it was said that the 
press was still left free to print truth, “ its licentiousness and abuse ” 
are only forbid. So it might be said of religion: True religion only 
ought to be tolerated: the abuse of religion ought to be forbidden; 
the “ licentiousness ” of particular sectaries ought to be restrained. 

He said he was fearful that he had already trespassed upon the 
patience of the committee, and he would hasten to a conclusion, with 
a few remarks on the particular shape and address of the resolutions. 
It had been objected by gentlemen that it was going too far to de¬ 
clare the acts in question to be “ no law, null, void, and of no effect;” 
that it was sufficient to say they were unconstitutional. He said if 
they were unconstitutional it followed necessarily that they were 
“ not law but null, void, and of no effect.” But, if those particular 
words were offensive to gentlemen, he had no objection to any modi¬ 
fication so the principle were retained. As to the objection that 
they were improperly addressed to the other States, Mr. Daniel said 
he supposed that this mode was extremely eligible. If the other 
States think with this that the laws are unconstitutional, the laws 
will, be repealed and the constitutional question will be settled by 
this declaration of a majority of the States, thereby destroying the 
force of this precedent and precluding from any future Congress, 
who might be disposed to carry the principle to a more pernicious and 
ruinous extent, the force of any argument which might be derived 
from these laws. 

If, on the contrary, a sufficient majority of'the States should de¬ 
clare their opinion that the Constitution gave Congress authority to 
pass these laws, the constitutional question would still be settled, 
but an attempt might be made so to amend the Constitution as to 
take from Congress this authority, which in our opinion was so 
pernicious and dangerous. 

He then concluded by saying that something must be done; the 
people were not satisfied; they expected that this legislature would 
adopt some measure on this subject; that the Constitution of the 
United States was the basis of public tranquility, the pledge of the 
sovereignty of the States and of the liberties of the people. But, 
said he, this basis of public tranquility, this pledge of liberty and 
security is but a name, a mere phantom, unless it be strictly observed. 
It became our duty to watch attentively to see that it was not violated; 
to see that it was equally observed by those who govern and by those 
who are destined to obey. To attack the Constitution was an offense 
against society, and if those guilty of it were invested with authority 
they added to the offense a perfidious abuse of the power with which 
they were intrusted. It was our duty, said he, to suppress this abuse 
with our utmost vigor and vigilance. It was strange to see a free 
Constitution openly and boldly attacked by those who were put in 
power under it. It was generally by silent and slow attacks that free 
governments had progressively changed till very little of their 


ALIEN AND SEDITION LAWS. 


77 


original texture and principles remained; that the doctrine of impli¬ 
cation had introduced innovations, under the influence and operation 
of which the freest governments had been enslaved. It was our duty 
to guard against innovations. The people of Virginia had been 
attentive to this subject. The petitions and remonstrances which had 
been read to the committee proved that the people were seriously 
alarmed at the innovations of the Federal Government. He said 
they proved more; they proved that the people thought that their 
servants in the administration of the Federal Government were not 
even modest enough to wait the increase of their power by progressive 
change; that their ambition exceeded the resources of the doctrine 
of implication; that their thirst of power could not be satiated but 
by a direct attack upon the Constitution and a prostration of the 
great rights of the people. He said this apprehension of the people, 
which he thought just, would be satisfied. He thought the mode pro¬ 
posed by the resolutions was most likely to effect this purpose as 
well as other important purposes. He said if they who were the 
representatives of the people would not act for them when called 
upon, the people will speak for themselves, and as the voice of God 
they would be heard. He hoped this final and dreadful appeal 
would never be necessary.' He preferred the resolutions and hoped 
they would be adopted by the committee. 

Mr. Cureton arose next and said that he wished to make some few 
observations; He confessed that he had before had some doubt about 
the alien law, but that the gentleman last up had convinced him of 
the propriety of it and was proceeding to show how; but observed 
that as the committee appeared to be impatient he would not trouble 
them any longer, and therefore moved that the committee should 
rise, but upon Gen. Lee’s rising to speak, he withdrew his motion. 

Gen. Lee then proceeded to observe that as the subject required 
the fullest deliberation he hoped that all the papers respecting it 
would be read that evening to prevent any interruption in the debate 
the next day. By this arrangement time would be saved, and per¬ 
spicuity in argument promoted. It was too late in the evening then 
to enter at large upon the subject. This he would defer till the next 
day, when he should with frankness and candor deliver his senti¬ 
ments, with a view of showing the pernicious tendency of the resolu¬ 
tions on the table. 

He begged to know how many counties in the State had pre¬ 
sented petitions to the assembly on this subject, any one of which 
petitions, with the alien law, he must trouble the clerk, he said, to 
read, as he believed this law particularly to be much misunderstood. 
He himself considered it as going only to enable the Chief Magistrate 
to remove dangerous aliens, thereby preventing the commission of 
crime and not punishing crimes committed. 

The sedition law, he said, so far as he recollected it, was free from 
the charges contained in the resolutions. If then, on examination, 
it was found that these laws were constitutional, the resolutions pro¬ 
posed must be rejected. If they were found unconstitutional it was 
proper to interfere and restore the Constitution to its original purity. 
In this salutary wish he would cheerfully join, but he must take 
steps becoming a portion of the same people to take full of friendship, 
full of mutual respect, and tending to perpetuate union and broth¬ 
erly love; not disunion and hatred. 


78 


ALIEN AND SEDITION LAWS. 


Mr. Nicholas arose next and said that the gentleman last up 
wished to save time by having all the papers read that evening, but 
he wished to know how that would save time. The gentleman had 
said, too, that the alien law extended to prevent only and not to 
punish crimes. Mr. Nicholas asked if banishment was no punish¬ 
ment. He had always understood, he said, that it was, and then 
observed that he should have been glad that the gentleman had been 
present from the commencement of the discussion that he might 
perfectly have understood the nature of it. 

Mr. John Taylor’s resolutions were then read, together with those 
laid upon the table by other gentlemen and the memorial from the 
people of Caroline County. 

Mr. Brooke then arose and observed that, laboring under all the 
diffidence that a person unaccustomed to public speaking w T ould natu¬ 
rally feel in delivering his sentiments upon so momentous an occa¬ 
sion as the present, he was sensible of the disadvantage he must have 
labored under in delivering his sentiments upon‘the subject the day 
before; and on this account he felt more sensibly the attack made 
upon him by his colleague and the attempt made by him to distort 
the observations which, in the midst of his confusion and embarrass¬ 
ment, Mr. Brooke said, had fallen^ from him. These observations 
that gentleman had undertaken to caricature. A more proper per¬ 
son for a task of this kind could not have undertaken it. He would 
do justice to every subject he ever did undertake. Mr. Brooke then 
said that he would proceed to repeat to the committee his observa¬ 
tions just as they were expressed, which, notwithstanding the diffi¬ 
dence he felt on the occasion, he perfectly recollected; and he be¬ 
lieved that other gentlemen, not disposed to distort his meaning, 
would agree with him in his statement. He had observed, he said, 
that he was opposed to the resolutions offered by the gentleman 
from Caroline, however modified; that he was under no instruc¬ 
tions; and that if the people of his county should be so degenerate 
(to the best of his recollection was the term; but if the term debased, 
which his colleague had stated as a stronger expression, would suit 
his purpose better, it might be so) as to instruct him to vote for 
resolutions having so dangerous and alarming a tendency as those 
referred to, he should go into mourning, he should bid adieu to legis¬ 
lation and seek an asylum in some other region of the globe amongst 
a race of mortals who had more respect for peace and order and 
who set a higher value upon the blessings of good government. Mr. 
Brooke then concluded by observing that he had thus recapitulated 
the observations used by him no less to gratify his colleague who 
had called upon him than that the people of his county might know 
that these were his sentiments. 

Mr. Booker then moved that the committee should rise. 

Mr. John Taylor hoped that the committee would not rise, but 
that they would proceed. Several days, he said, had already been 
spent in the discussion of the business before them, and much more 
time might be spent unless they should adopt a different mode. They 
had until then been in the habit of receiving only one speech a day, 
and the only way to dispatch the business, he thought, would be to 
meet early and sit late. 

Mr. George K. Taylor said that he intended to: say something 
further upon, the subject, but wished not to hurry the committee. 


ALIEN AND SEDITION LAWS. 


79 


Mr. Cowan also observed that he intended to deliver his sentiments 
to the committee, tending to show that the alien law was constitu¬ 
tional, but wished not to press the matter then. 

Mr. Nicholas hoped that the committee would not rise. They had 
as yet proceeded but slowly. He hoped, therefore, that the gentle¬ 
man last up would proceed; he should be glad to hear him. 

The same being also requested by others at the same time, 

Mr. Cowan proceeded by observing that much had been said upon 
the subject already. It was a question of great importance, and the 
great attention which had been given by the committee was a proof 
of the talents of the speakers. He confessed that he had no such 
claim, but came forward on another ground. He felt it a duty to 
his constituents and the whole community to engage in the discus¬ 
sion. He had noticed, he said, that the observations of the gentle¬ 
man from Prince George had been objected to on one particular 
ground, that of their mingling the affairs of France with the subject 
of the laws under consideration. But he (Mr. Cowan) thought that 
could not be avoided. The present question, he said, had its root in 
French transactions. The rights of citizens and aliens, he thought, 
had been confounded; and in order to have a clear apprehension of 
them a standard ought to be fixed upon to try them. That standard 
he pronounced to be, as to citizens, the Constitution; as to aliens, the 
law of nations. Every sovereign nation, he said, was possessed of 
certain rights. Amongst them the right to govern aliens was a per¬ 
fect right. It vested a power to restrain them. That right, he said, 

‘ contained two things; the first was that of obliging aliens to depart, 
the second was to allow them to remain. 

An alien, said Mr. Cowan, entering into a country as the condition 
of such entrance doth agree to submit to the laws of its sovereignty. 
Submitting to them did imply that when required he was bound to 
retire. Where did the exercise of this power rest? By the Consti¬ 
tution the power to exclude remains in the States for a limited time. 
It was true that the powers not particularly granted are reserved. It 
had been said that the State was sovereign. It was so, but not in 
the latitude contended for. For if it were so the clause in the Con¬ 
stitution respecting the migration and importation of persons wa& 
an argument to the contrary. How did the State derive this right? 
If it had it before the adoption of the Constitution the Constitution 
gave it to no purpose. It was a supererogation. By the adoption of 
the Constitution, Mr. Cowan conceived, the States accepted that right. 
Where was it, then? It w T as with the people, who in order to the 
distribution of powers therein specified and for that purpose had 
resumed their full, their native rights. That, indeed, was a matter 
of moment, for could they once ascertain where the right then was 
vested they might then find the key to unlock the Constitution, so as 
to find the power to pass an alien law. If Congress had not the right, 
the States must have a paramount right to protect aliens. If Con¬ 
gress had it not, the States could suffer aliens to remain within them 
in despite of Congress. Could the States then confer a perfect right 
on aliens? If they could not, they had no power to keep them here, 
for if they could keep them here one hour they might keep them here 
until 1808. But Mr. Cowan said he would attempt to show that the 
States had no such right. He hoped gentlemen would answer him 
on that point. A State could confer a perfect right only in two ways: 


80 


ALIEN AND SEDITION LAWS. 


First, by naturalization, but this subject was conveyed to Congress; 
secondly, by treaty with the State from which the alien comes, but 
this power, too, was vested in Congress and prohibited to the States. 
Could an act of assembly confer a perfect right? No; because “a 
perfect right being that to which is joined the right of constraining 
those who refuse to fulfill the obligation resulting from it.” 

An alien could not oblige a compliance with the terms of it. It had 
been said that the alien law violated that part of the Constitution 
which gives the State a right to exclude aliens if it thinks proper, 
but if the State could not give the right to them to remain it must be 
with Congress and therefore no violation. By the Constitution a 
power was given to Congress to repel and to protect against invasion 
and to make an}^ law to carry its measures into effect. What could 
be the meaning, then, of those clauses? The terms to repel inva¬ 
sion and protect against invasion gave different powers. Could it be 
thought proper that the General Government should have no power 
to defeat a plan before it was matured? It must be inferred, then, 
from such words that Congress had the power to take such measures 
as would secure the people. There was no necessity, then, of resort¬ 
ing to the last clause of the eighth section of the first article for the 
power in question. The general powers of Congress would be suffi¬ 
cient to give it. When bound to accomplish an end, are not, said he, 
the means included? Or are they withheld? But if the State had 
no such power it was in Congress. For if it was not there, v r here 
was it? Thus much, Mr. Cowan said, for the constitutionality of 
the alien law. He proceeded next to discuss its nature. It had been 
said that it blended different powers, but Mr. Cowan said that the 
Constitution of the United States, in his opinion, was not such an one 
as that the powers of Government were necessarily kept separate and 
distinct. It was true they were so in the State constitution, but that 
they are not so in the former was proved by the instance of the Presi¬ 
dent’s ratifying a treaty, for as the treaty when made becomes a law 
his ratification has the effect of a legislative act. He must often act 
with an union of powers. By approving laws particularly he legis¬ 
lates, and in cases where no person is pointed out by a law to enforce 
its execution the President perhaps is the proper person to do it. 
This is proved by that clause in the Constitution which directs that 
the President shall take care that the laws be faithfully executed. 
Therefore even if the President had not been named to carry the 
alien law into effect by the Constitution he must have done it so far 
as was executive. Two powers, then, are united by the Constitution 
in him. 

Mr. Cowan then observed that if the committee could be convinced 
that the law was constitutional they certainly must conceive the wis¬ 
dom of Congress adequate to the policy of such a law. The alien- 
enemy laws passed by the legislature of this State and also by the 
Congress of the United States had been admitted by the gentleman 
from Caroline to be necessary. 

He (Mr. Cowan) considered that law of Congress as being very 
analogous to the law now the subject of debate. For, if such enemy 
alien law be necessary in a state of war, the law of Congress now 
under the consideration of the committee, under defensive operations, 
was necessary in proportion. It had been urged, too, that aliens, by 
the law of nations, had the same rights as citizens. But that the alien 


ALIEN A.XD SEDITION LAWS. 


81 


was so entitled, he said, was necessary to be shown. There certainly 
was a distinction between alien and citizen. An alien is not subject 
to all the laws of a country, but such only as regulated the affairs 
of private life. Mr. Cowan then read the seventh amendment to the 
Constitution, containing the principles and regulations which were 
to govern in criminal cases. Gentlemen had derived rights to aliens 
under this clause and seemed to rely much upon the word “ persons ” 
used in this clause. But he (Mr. Cowan) asserted that aliens were 
entitled to their privileges from a principle of the law of nations, and 
not under the Constitution as a party thereto. For the alien could 
not be made a soldier, he owing allegiance elsewhere. The expres¬ 
sions, too, used in the seventh amendment, “ except in cases arising 
in the land or naval forces or in the militia when in actual service 
in time of war or public danger,” prove that aliens were not the 
persons contemplated by that clause but citizens, they only being 
subject to those kinds of service. Indeed an Indian or a negro might, 
by such doctrine as gentlemen held, be as well entitled as an alien, 
but none of these were parties to the Constitution. Gentlemen who 
argued thus would prove too much for an alien. They would place 
him in a better situation that our own citizens. It had been said 
banishment is a crime, but banishment of a citizen, said Mr. Cowan, 
exists not under the Constitution. He said also that an alien 
on coming into, admitted the right of sovereignty of the country 
over him. This was the condition of his admission into every 
country; to illustrate which, he repeated the observations which he 
had before made upon that point. He also recapitulated his pre¬ 
ceding arguments about perfect right, and then observed that it had 
been said that this assembly ought to adopt the resolutions before 
them and not use force, but by means of them produce an effect on the 
General Government. And it was further said that the compact was 
between States, but Mr. Cowan said he could not agree with gentle¬ 
men in these points. What effect could the resolutions have? It 
ought to be supposed that Congress had wisdom; that if they thought 
they were right they would not recede. If they thought they were 
wrong he believed they would endeavor to do what was right. He 
thought, too, that the compact contained an union both of the States 
and people. What, said he, would be the effect of declaring the laws 
null and void ? The principle would extend to all laws of Congress 
whatever. What then would be the result ? It Avould shake the foun¬ 
dations of tranquillity. It would shake the faith of the people in 
their Government, as well as the faith of foreign nations in it. It 
would be setting up powers paramount to the Government. Because 
a few of the people had directed them to act upon the subject, could 
•they think they had the power ? Had the people empowered them to 
declare the laws null and void? On the contrary, if the people on 
their return should hold a different language, how could the Mem¬ 
bers of this House justify themselves to the people? Would it be by 
telling them that they, their representatives, had all powers? He. 
again stated the consequences of exercising such a power. And if 
the compact were to be dissolved, he asked, what would be the con¬ 
sequences ? The resolutions would give a pause to the acts under con¬ 
sideration. For they recommended to the people to obey or not obey. 
And if without power from the people this assembly should attempt 

52068—S. Doc. 878, 62-2-6 


82 


ALIEN AND SEDITION LAWS. 


to exercise their rights to control the General Government; he asked, 
what would be the consequences ? He enumerated them much at large 
and concluded with an earnest request that they would not adopt the 
mode proposed by the resolutions. 

On motion, the committee then arose, the chairman reported 
progress, asked, and had leave for the committee to sit again. 


In the House of Delegates, 
Thursday , December 20, 1798. 

The house resolved itself into a committee of the whole house on 
the state of the Commonwealth, Mr. Breckenridge in the chair, when 
Mr. John Taylor’s resolutions being still under consideration, 

Gen. Lee arose and said that he was sorry he had been prevented 
from attending his duty in the house earlier in the session. He had 
thereby lost the opportunity of combating the pernicious system in 
operation at its commencement, as well as that of obtaining the in¬ 
formation which previous discussion must have afforded. Disadvan- 
tageously, however, as he felt himself situated, he could not refrain 
from presenting to the committee those reasons which influenced him 
in opposing the resolutions. There were, he believed; three proposi¬ 
tions on the table: The resolutions proffered by the worthy member 
from Caroline; counter resolutions proposed by his worthy friend 
from Prince George; and a resolution proposed by a worthy member 
from Prince William. To the counter resolutions he gave his cordial 
assent ; to the last proposition he also assented, as it breathed a 
spirit congenial to true American policy and afforded an innocent 
way of disposing of the resolutions from Caroline. But inasmuch 
as the rejection of the first resolutions would necessarily involve the 
approbation of those proposed in opposition, he should apply his 
observations to effect that object only. 

Gen. Lee then contended that the ruling principle in the resolu¬ 
tions was erroneous. They asserted as a fundamental position that 
the existing Constitution was a compact of States. He denied this 
position, declaring the Constitution to be a compact among the peo¬ 
ple. The ancient confederation was a compact among the States; it 
was so in style, manner, and power. But the Government under which 
we now live was precisely the reverse. What is its style? “We the 
people.” What is its manner? Executed by functionaries appointed 
mediately or immediately by the people. What is its power? That 
of the people, derived from them, and based upon them. How then 
could it be asserted that the present Constitution is a compact of 
States?/ And would the committee sanction by their approbation,' 
a declaration palpably wrong? It was true there was to be drawn 
from the Constitution some faint support for this erroneous con¬ 
struction. The Senate, one branch of the Federal Government, was 
elected by the States, as States. This deviation from the general 
system could not be relied on to destroy the system itself. It was 
the result of our peculiar situation. The smaller States could not 
be induced to renounce their existing equality entirely. It was 
necessary to compromise in order to obtain the happy Constitution 
we possess. 



ALIEN AND SEDITION LAWS. 


83 


To ibis compromise was attributed the Federal features just men¬ 
tioned. But this partial departure from the general principles of 
the system could not be regarded as covering the broad ground taken 
in the resolutions. All the branches of Government ought to be 
elected by the States, as States, to maintain the position assumed. 

This was not the case and consequently the resolutions were radi¬ 
cally erroneous. 

. Gen. Lee then proceeded to the examination of the alien and sedi¬ 
tion laws. He began with the alien law, which he contended was.not 
a breach of the Constitution. If the law was unconstitutional, he 
admitted the right -of interposition on the part of the general assem¬ 
bly; nay, it was their duty ; and every good citizen was bound to 
uphold them, in fair and friendly exertions, to correct an injury so 
serious and pernicious. He would himself cordially contribute his 
humble mite; but even in that case he should adopt a very different 
manner from that contained in the resolutions. Friendship should 
be the ground, friendship the dress, and friendship the end of his 
measure's. The resolutions inspired hostility and squinted at dis¬ 
union. 

The objections made to the alien law were: First, it transcends the 
power of Congress; second, it violates that article of the Constitution 
which leaves to the States the right of admission of emigrants; third, 
it deprives an alien friend of trial by jury; fourth, it unites legisla¬ 
tive, executive, and judicial powers. To the two last, he said, he 
should particularly attend, as gentlemen preceding him had, he 
understood, fully noticed the two first. Gen. Lee read some passages 
from the law tending to show that the prevention of commission of 
crime, and not the punishment of a crime committed, was its only 
object. 

He then proceeded to show that trial by jury could only apply on 
charge of crime committed. It was ludicrous to attempt to apply it 
in the alien law; and it was consequently absurd to stigmatize that 
law, and those who framed it, with violation of the Constitution by 
denial of trial by jury, where trial by jury could not possibly apply. 
The law was in its nature preventive and sprung from the right of 
duty of government to protect the States from invasion. The ex¬ 
ercise of this right belonged to Congress, and they were the sole 
judges of the expediency. In their decision all ought to acquiesce. 
In case of error or vice the revolving elections presented a proper 
corrective, which could be applied to without commotion or dis¬ 
turbance; and which, fairly and judiciously applied, could not fail 
to cleanse the body politic. 

During the debate it had been well observed by the worthy member 
from Lunenburg that the injustice of France might be considered as 
the root of these measures, and that it was not easy to discuss the 
latter without reference to the former. This remark was certainly 
true and must have been felt by every gentleman engaged in the 
discussion. 

In case of an invasion a measure dependent only on its practica¬ 
bility, of which practicability our venomous and insatiable foe was 
the sole judge, what keen and operative aid might not be afforded by 
the numerous aliens, long fostered by American hospitality and 
anxious for an opportunity to display their ingratitude, if we might 
be permitted to form an opinion of their future conduct by the zeal 


84 


ALIEN AND SEDITION LAWS. 


with which they labored to expel from the breasts of our citizens all 
respect for religion and government, preparing, as far as was in their 
power, the American people for the reaction of the French and Santo 
Domingo tragedies. 

Ought not then Congress to have taken measures to rid their 
country of such eventual misery? It was their first duty so to do, 
and supineness on their parts would have been criminal. 

But it seems that aliens have rights under our Constitution. It 
was'wonderfully kind, he said, in our fathers to devote their time and 
money to the care of the Turk.. Gaul, and Indian when the proper 
object was that of their children. This spurious doctrine, however 
confidently asserted, was not credited by the gentlemen themselves. 
They might impose on others, but the discernment of their own minds 
forbade success in imposing on themselves. An alien would claim no 
right in this country unless he could show a treaty for it, excepting 
his participation in the usual rights of citizens, which he held upon 
courtesy and which courtesy could be withdrawn at the pleasure of 
the sovereign power. Be done, then, he said, with all these pretenses. 
They were groundless and seized only to excite more and more the 
begun ferment. 

The sedition law, Gen. Lee said, was also declared to be a violation 
of the Constitution. Let us, said he, examine it. Let us refer to the 
clause in the Constitution securing the freedom of the press, which 
we are told by the above law is abridged. By the law you must con¬ 
spire to oppose a measure of government, or utter, write, or publish 
w T ith the intention of opposing or exciting opposition to government. 
The publication must also be false, malicious, and scandalous. 

Gen. Lee then asked if government. was worth preserving. If 
not, let it be annulled. If it was, deny not to it, he said, the means 
of preserving itself. The Constitution must be very defective if it 
held not the power of self-preservation. It was not defective, and a 
fair construction of it would warrant the sedition law. Government 
with us depended for its existence upon the affections of the people. 
In its preservation the people were interested. Any attempt by the 
publication of falsehood to discredit government and thereby to 
impair the public confidence in it was an offense against the people; 
it was wrong in morality and ought to be punished. What honest 
man would complain of a law which forbids the propagation of 
malice, slander, and falsehood? What good citizen would not de¬ 
light in a law which, while it punishes the above vices, tends to per¬ 
petuate the government of his choice? And yet a law of that sort, 
he said, afforded a fertile topic of abuse and misrepresentation. 

Gen. Lee then observed that “thou shalt not lie” was one of the 
Ten Commandments; it was one of the injunctions of the sedition 
law. Whoever considered the freedom of speech abridged by the 
Divine Law? No man, unless lunatic; nor could the freedom of the 
press be so deemed without a misconstruction of the Constitution or 
of the sedition law. 

This State, he said, had from the revolution enacted laws of the 
same sort. In 1776 a committee was appointed for the revision of 
our laws. Messrs. Pendleton, Wythe, Jefferson, Mason, and Lee com¬ 
posed the committee—able, honorable, and eminent citizens. Among 
their proposed bills was to be found one on the subject of libels. A 
reference to this bill would show its minute resemblance to the sedi- 


ALIEN AND SEDITION LAWS. 


85 


tion law. Authority such as that just quoted, Gen. Lee said, could 
not fail in guarding the committee from accrediting the intemper¬ 
ate censures issued against Congress. He would proceed, he said, to 
another authority in point of time and subject, though one of the re¬ 
spectable gentlemen just named, and the very one of all others to 
whom gentlemen on the other side attached most weight. Mr. Jef¬ 
ferson in his correspondence with Mr. Madison respecting the new 
Constitution maintains, said Gen. Lee, the doctrine we contend for. 
He (Mr. Jefferson) expressly says that in preventing the abridg¬ 
ment of the freedom of the press punishment for uttering falsehoods 
ought not to be inhibited. The same doctrine is expressed by the 
same gentleman in his Notes on Virginia. 

However, Gen. Lee said, he would refer to an authority still 
higher—the general assembly of this State in 1776. That august 
body, the champions of American rights, the patriots who composed 
our State constitution, passed a law on this subject in the following 
words: “ That if any person residing, or being within this Common¬ 
wealth, shall, from and after the publication hereof, by any word, 
open deed, or act, advisedjy and willingly maintain and defend the 
authority, jurisdiction, or power of the King or Parliament of Great 
Britain, the person so offending being legally convicted thereof shall 
be punished with fine and imprisonment, to be ascertained by a jury, 
so that the fine exceed not the sum of £20,000 nor the imprisonment 
the term of five years; and that any person who shall maliciously 
and advisedly endeavor to excite the people to resist the government 
of this Commonwealth as by law established, or persuade them to 
return to a dependence upon the Crown of Great Britain, or who 
shall maliciously or advisedly terrify and discourage the people from 
enlisting into the service of the Commonwealth, or dispose them to 
favor the enemy, every person so offending, and being thereof legally 
convicted, shall be punished with fine and imprisonment as afore¬ 
said.” 

These men, Gen. Lee said, formed our Constitution, and these men 
passed the law of which the quotation is an extract. They must have 
understood their own work; they could not mean to violate the Con¬ 
stitution. The law then was not unconstitutional in their opinions 
and yet it must be so if the doctrine now advanced be accurate. 

The Constitution of the State and of the United States provide 
in terms equally strong for the security of the freedom of the press. 
The law above quoted, passed by the State, and the sedition law, 
passed by Congress, were of the same sort in word, spirit, and object. 
If the first be no violation of the State constitution, the second could 
not be deemed a violation of the United States Constitution. Other 
laws passed by the State, all tending to justify the opinions which 
he and those who thought with him held, Gen. Lee said, might be 
referred to, especially the law against the divulgers of false news 
and the law against treason. It had been fully observed by the worthy 
member from" Prince George that the word “ freedom ” of the press 
had a definite meaning and he had proved incontestibly what this 
technical meaning was, to wit, a freedom from every restraint in 
printing, but not a freedom from punishment if the printing was in 
its tendency injurious to an individual or to the community. 

It appeared plainly to his mind then that the.resolutions asserted 
an untruth when they charged the two laws with violation of the 


86 


ALIEN AND SEDITION LAWS. 


Constitution. But it seems, said he, that the laws are inexpedient 
and unwise. Of their expediency and wisdom the people have made 
Congress the. sole judge. They have the best information; their 
object must be the public good; and it was presumable that the meas¬ 
ure was wise and necessary or their adoption would not have taken 
place. He would not, he said, examine the question of expediency 
of the laws, but would examine the expediency of the resolutions. 
Admitting for a moment that the laws were unconstitutional, he 
contended that the course pursued by the resolutions was inadmissi¬ 
ble. Prudence frowned on the indecorum and hostility which their 
face showed; nor Avas it to be presumed that contumely to the sover¬ 
eignty of the Union was the likeliest way to obtain a repeal of the 
laws. The very reverse must happen. Why then recur to such an 
expedient if the object of repeal be the real object? He hoped that 
he should be pardoned, he said, when he suspected that repeal of the 
laws was not the leading point in view. Promotion >of disunion and 
separation of the States struck him as objects which the resolutions 
covered. What evils so great could befall the American people ? Every 
measure squinting at such disasters ought to be spurned with zeal. Let 
us then, said he, put our veto on the resolutions. Was an individual, 
he observed, to apply to his friend for redress of some supposed in¬ 
jury, the application would be conveyed in terms polite and friendly. 
So ought it to be when a State applied to the United States. But 
why not wait for the operation of the constitutional checks? The 
united system was made by the whole people for the management of 
all affairs national. The same people instituted State governments 
for the management of all State affairs. These systems held con¬ 
curring jurisdiction over some subjects, and, of course, might occa¬ 
sionally interfere. Who then was the proper arbiter between them? 
Not the State government; the people had given them no such 
power. The people themselves, the creators of both systems, were 
the proper judge. Their decision Avas obtainable under the rules of 
the Constitution in the revolving elections. The judiciary also Avas 
a source of correction of legist a tAe evil, a source fixed by the Consti¬ 
tution, and adequate to cure violations of the same like those noAV 
alleged. The State legislatures might also actr but it must be by 
proposing amendments to the Constitution in either Avay therein 
delineated. 

If, then, the laws Avere deemed unconstitutional, let the question, 
he said, be left to the people, to the judges; or let the legislature 
come forward with a proposition for amending the doubtful parts 
of the Constitution; or with a respectful and friendly memorial, 
urging Congress to repeal the laAvs. Thus Avould our Union be 
strengthened, our friendship perpetuated. 

The State judges, he said, had on many occasions interposed when 
this legislature had passed laAvs unconstitutional. The remedy had 
cured the disorder and tranquillity remained undisturbed. So would 
do the Federal judges. They were as respectable, as trustworthy 
as AA T ere the State judges; in them as much confidence ought to be 
reposed. For his part, he said, he felt as much confidence; nor could 
he admit the force of those distinctions which gentlemen labored 
to establish tending to discriminate in favor of State judges and 
State officers. They were all citizens alike, bound to do their duty, 
clothed with the authority of the people, and directed by the will 


ALIEN AND SEDITION LAWS. 


87 


of the people. Whether called State or Federal judges, sheriff or 
marshal, was a light and unimportant circumstance. 

The resolutions, Gen. Lee said, struck him as recommending re¬ 
sistance. They declared the laws null and void. Our citizens thus 
thinking would disobey the laws. This disobedience would be pa¬ 
tronized by the State and could not be submitted to by the United 
States. Insurrection would be the consequence. We have had one 
insurrection lately ? and that without the patronage of the legislature. 
How much more likely might an insurrection happen, which seemed 
to be advised by the assembly? The scene in Pennsylvania turned 
out to be a comedy. The same attempt here, he feared, would issue 
in tragedy. Let us, said he, avoid these numerous ills. All the States 
are interested in our decision, both as to their reputation and tran¬ 
quillity. He requested gentlemen then to be temperate, to reject the 
proffered paper, and adopt some other course. 

Division among ourselves at this time, he said, encouraged inva¬ 
sion. He could not bring himself to believe that gentlemen meant 
to invite the enemy to our country. He could not attribute to gen¬ 
tlemen such motives. But what signified the goodness of their in¬ 
tentions if their measures produced the effect ? 

Gen. Lee then concluded by entreating gentlemen to pause. Take 
this one rash step, said he, and you will be carried step by step till 
you land in misery or submit quietly with derision settled upon your 
heads. Should my efforts, Mr. Chairman, be unavailing, I shall 
lament my country’s fate and acquiesce in my country’s will, and 
amidst the surrounding calamities derive some consolation from 
recollecting my humble exertions to stop the mad career. 

Mr. Cureton said that there had been silence in the committee for 
some time, and if no other gentleman was disposed to speak he hoped 
the question would then be put. The debate had engaged their atten¬ 
tion for several days past, and he expected that every member of 
the committee had made up his mind upon the question. 

Mr. John Taylor’s resolutions were read by the clerk. 

Mr. Peter Johnston then arose and acknowledged his incompetency 
to throw any light upon the subject, but hoped to be indulged with 
a few observations in answer to the gentleman from Westmoreland. 
He had contended that the States were not parties to the compact, 
but the people. Mr. Johnston denied the position and said that every 
fact in the history of the Government would contradict it. If the 
confederation was formed by States, the States alone possessed the 
power of dissolving it. And when it was found incompetent the 
States and not the people directed a convention to frame the Consti¬ 
tution. When that was framed their power was at an end. The 
members of it, it was true, were the representatives of the mass of 
the people of America. But when the system was framed it was sub¬ 
mitted to the conventions of the people of the several States. If 
those conventions, then, assembled under the auspices of the legisla¬ 
tures of the different States, the States were parties. Should the 
words “we, the people,” then, change the nature of the compact; 
contrary to the historical facts of the day ? He thought not, 

Mr. Johnston then cited the fourth section of the fourth article of 
the Constitution, which declares, “ that the United States shall guar¬ 
antee to every State in this Union a republican form of government, 
etc.” Also the fifth article, which declares that “the Congress, when- 


88 


ALIEN AND SEDITION LAWS. 


ever two-thirds of both Houses shall deem it necessary, shall propose 
amendments to this Constitution, or on the application of the legis¬ 
latures of two-thirds of the several States, shall call a convention for 
proposing amendments, which in either case shall be valid to all 
intents and purposes as part of this Constitution when ratified by 
the legislatures of three-fourths of the several States, or by conven¬ 
tions of three-fourths thereof, as the one or the other mode of ratifi¬ 
cation may be proposed by the Congress, etc.” From these clauses he 
conceived an irrefragable argument was deducible in favor of his 
idea. It had been said, however, that from the expression “ conven¬ 
tions” in this article the States were not parties. Mr. Johnston con¬ 
tended that they were, as the other expressions in this article were as 
strongly in favor of the States being parties, as the word “conven¬ 
tions ” could be in favor of the people being parties. The truth was 
that both the States and the people were parties. 

He then made several observations in answer to Gen. Lee’s argu¬ 
ment upon the matter of compromise between the States. This 
gentleman, too, he said, had asserted that the alien law extended to 
prevent offenses and not to punish them. This Mr. Johnston denied 
and proceeded to point out the real case of the alien under the law 
of Congress. He understood the law was designed for alien 
friends. There was also an alien-enemy law, and if the former re¬ 
lated to alien enemies it would have had reference to the latter. But 
it was general. It related, therefore, to both. He mentioned the 
argument of Gen. Lee respecting the entry of aliens into a country, 
but observed that this point had before been spoken to. 

Mr. Johnston also referred to the remarks of Mr. George K. Taylor 
upon the rights of aliens, and contended that an alien was entitled 
to justice. If so, he was entitled to the means of obtaining justice, to 
which a fair trial was indispensable, but was deprived of it by this 
law. It was in vain to say that the President would not abuse the 
power. If it was not warrantable by the Constitution, it was still 
objectionable. It had been said, too, that citizens might live in peace 
notwithstanding the law; that neither was any argument, if the law 
w T as unconstitutional. The gentleman from Westmoreland had 
placed a particular construction on the word persons. In doing that 
the gentleman should have recollected the case of a certain descrip¬ 
tion of persons excluded by the laws of this State from entering the 
same. The same gentleman had read extracts, too, from the sedition 
law to show that there must be intent and purpose in order to bring 
men within the law. Mr. Johnston asked how intent and purpose 
were to be made out but by words. To illustrate which he mentioned 
Lyon’s case, and then asked how an intent could be proved but by 
deductions from words. Was that any security? An evil intent 
might be deduced from words by which none was ever designed. 
He mentioned as an instance the story lately circulated amongst them 
respecting Mr. Tazewell, our Senator. It would be, moreover, in 
the power of the tools of government to place a construction on words 
which might destroy the person speaking them. The gentleman from 
Westmoreland had also read extracts from the law of the State re¬ 
specting aliens, and insisted that Congress had the same right as the 
State to pass such a law. This Mr. Johnston, denied, and contended 
that the States in that respect had sovereign power and that Congress 
had no such power, but a defined and limited power only. To prove 


ALIEN AND SEDITION LAWS. 


89 


which he read the first clause of the ninth section of the first article, 
in the following words: “ The migration or importation of such 
persons as any of the States now existing shall think proper to ad¬ 
mit shall not be prohibited prior to the year 1808,” etc.; and then 
asked if any law having that effect had been passed before the adop¬ 
tion of the Constitution. There had not; therefore such clause was 
inserted. Mr. Jefferson’s letter, too, had been produced; but was 
that to be quoted to govern the committee on the occasion? The 
Constitution should be their guide. And even Mr. Jefferson’s letter, 
sis it was stated, did not extend to the business in question; it related 
only to private regulations. 

Mr. Johnston then proceeded to consider the consequences of the 
sedition law, and, among others, conceived that the public opinion, 
heretofore found so useful, would be repressed—would be punished 
by it. Was that the liberty which was guaranteed by the Constitu¬ 
tion? No; it was a shameful attack upon both. All the gentlemen 
who had spoken upon this question (except the gentleman from Caro¬ 
line), instead of arguing the constitutional point, had addressed 
themselves to the passions. He then asked what would be the conse¬ 
quence if responsibility was taken from public servants. The style 
of the resolutions, too, had been complained of. But whether the 
laws were said by the committee to be null and void or not was a 
matter, he thought, of little consequence. For if they were uncon¬ 
stitutional the}", of course, were null and void. He justified the mode 
of communication which the resolutions proposed. The people might 
petition if they thought proper; but the State, when addressing its 
own servants, ought to act as the resolutions proposed. It had a 
right to instruct its Senators and the people their Representatives. 
However, Mr. Johnston said, as the subject was exhausted, he would 
be satisfied with the remarks he had made. 

Mr. Cureton arose next and proceeded to deliver his opinion in 
respect to the powers of the General Government and the State gov¬ 
ernments. How were their powers derived ? From the people. The 
convention that framed the Constitution was called by the States. 
The Constitution when framed was submitted to the people, who by 
convention ratified it. He asked what would be the consequence of 
an opinion that the States had the balance of power alone. What 
was it? One-sixteenth part only. He considered that the people 
had powers, and contended that they had the only right to act upon 
the sedition law. And if Congress had usurped a power which 
should appear to be an innovation on their rights, they would have 
the power in March next to make an example of those who had 
trampled on those rights; and this mode of proceeding was consist¬ 
ent with the Constitution. He then asked why did the resolutions 
embrace both laAvs. He also made several observations respecting the 
power of passing such a law as the alien law. He agreed with the 
gentleman from Lunenburg that the power properly belonged to 
Congress, and asked how could aliens dangerous to the country be 
sent out of it if the power was not vested in the President. 

Mr. Cureton then proceeded to answer the objections of gentle¬ 
men in respect to the corruption of the officers of the General Gov¬ 
ernment, and hoped that they should be confined to the constitution¬ 
ality of the laws; but he still contended that the people had the 
only right to act upon the sedition law. The States never had the 


90 ALIEN AND SEDITION LAWS. 

power alone, therefore it could not. be reserved. It belonged to 
Congress, who were under the correction of the. people only. As far 
as the resolutions related to the alien law, he had no objection, he 
said, to do what was proper; for instance, if it should appear that 
the law was an infringement on the State government, to recom¬ 
mend it to our Senators in Congress to endeavor to have the same 
repealed, for that was sanctioned by precedent. But the plan-of the 
resolutions, Mr. Cureton said, wns a new one. He looked upon it 
as an innovation on the rights of the people and stabbing funda¬ 
mental principles. He concluded by hoping, therefore, that the reso¬ 
lutions would not be agreed to. 

Mr. John Taylor arose next and observed that though it was 
late and the debates had been protracted to great length, he hoped 
the importance of the subject would be considered as a justification 
for his replying to the extraordinary and dangerous arguments 
which had been urged in opposition to the resolutions he had intro¬ 
duced. 

A member of Lunenburg had even asserted them to be an act of 
perfidiousness to the people, because, by undertaking to declare one 
law of Congress unconstitutional, the legislature would assume a 
power of declaring all their laws unconstitutional. Let the propo¬ 
sition then be reversed to discover if there be perfidiousness in the 
case, the side to which it attached. Would it be said that the legis¬ 
lature could not declare this law of Congress unconstitutional be¬ 
cause it could declare no law of Congress unconstitutional? Ad¬ 
mitting such a position, did not these consequences evidently follow 
that the check meditated against Congress in the existence of the 
State governments was demolished? That Congress might at its 
pleasure violate the constitutional rights of these governments? 
That they must instantly become dependent and be finally annihi¬ 
lated ? Could it be perfidious to preserve the freedom of religion, 
of speech, of the press, and even the right of petitioning for a re¬ 
dress of grievances? Gentlemen, in defining the laws of Congress, 
had taken their stand upon this broad principle, namely, “ That 
every government inherently possesses the powers necessary for its 
own preservation.” Apply this principle to the State governments, 
for if it be a sound one they are equally entitled to the benefit of 
it with the General Government. Under this principle, then, to 
which his adversary had resorted, and which he therefore could 
not deny, it followed that the State governments have a right to 
withstand such unconstitutional laws of Congress as may tend to 
their destruction, because such “a power is necessary for their 
preservation.” To illustrate this, suppose Congress should be of 
opinion that an arrangement of men into different ranks would 
tend to the order of society, and should, as preparatory to this end, 
intermeddle with inheritances and reestablish primogeniture. It 
could only be urged against such a law that it was unconstitutional; 
but if the State could not declare any law T of Congress unconstitu¬ 
tional and void, even such a one as this must be submitted to, and, of 
course, all powers whatsoever would gradually be absorbed by and 
consolidated in the General Government. 

Pie observed that the right of the State to contest the constitu¬ 
tionality of a law of Congress could, however, be defended upon 
better ground than by the reaction of the doctrines of gentlemen on 


ALIEN AND SEDITION LAWS. . 91 

themselves. That a principle literally constitutional, theoretically 
sound, and practically useful could be advanced on which to rest it. 
It was this: The people and the States could only have intended to 
invest Congress with a power to legislate constitutionally, and the 
Constitution expressly retains to the people and the Stales every 
power not surrendered; If, therefore, Congress should, as was cer¬ 
tainly possible, legislate unconstitutionally, it was evident that in 
theory they have done wrong, and it only remained to consider 
whether the Constitution is so defective as to have established lim¬ 
itations and reservations without the means of enforcing them in a 
mode by which they could be made practically useful. Suppose a 
clashing of opinion should exist between Congress and the States 
respecting the true limits of their constitutional territories, it was 
easy to see that if the right of decision had been vested in either 
party that party, deciding in the spirit and interest of party, would 
inevitably have swallowed up the other. The Constitution must not 
only have foreseen the possibility of such a clashing, but also the 
consequence of a preference on either side as to its construction. 
And out of this foresight must have arisen the fifth article, by 
which two-thirds of Congress may call upon the States for an ex¬ 
planation of any such controversy as the present, by way of amend¬ 
ment to the Constitution, and thus correct an erroneous construc¬ 
tion of its own acts by a minority of the States, whilst two-thirds 
of the States are also allowed to compel Congress to call a conven¬ 
tion, in case so many should think an amendment necessary for the 
purpose of checking the unconstitutional acts of that body. 

Thus, so far as Congress may have the power, it might exert it 
to check the usurpations of a State, and so far as the States may 
possess it, a union of two-thirds in one opinion might effectually 
check the usurpations of Congress. And, under this article of the 
Constitution, the incontrovertible principle before stated might be¬ 
come practically useful; otherwise no remedy did exist for the only 
case which could possibly destroy the Constitution, namely, an en¬ 
croachment by Congress or the States upon the rights of the other. 

The case was even strongest in favor of a check in the hands of 
the States upon Congress; for although Congress could never alter 
or amend the Constitution without the concurrence of three-fourths 
of the States, yet such a concurrence would be able so to alter or 
amend it as to check the encroachments of Congress, although the 
whole of that body should disagree thereto. The reason for this 
will exhibit the unconstitutionally of the argument which supposes 
that the States hold their constitutional rights by the courtesy of Con¬ 
gress. It was this: Congress is the creature of the States and of the 
people, but neither the States or the people are the creatures of Con¬ 
gress. It would be evidently absurd that the creature should ex¬ 
clusively construe the instrument of its own existence; and therefore 
this construction Avas reserved indiscriminately to one or the other 
of those powers, of which Congress was the joint work, namely, to 
the people, whenever a convention was resorted to, or to the States, 
whenever the operation should be carried on by three-fourths. 

Mr. Taylor then proceeded to apply these observations to the 
threats of war and the apprehension of civil commotion, toward 
which the resolutions were said to have a tendency. Are the Repub¬ 
licans, said he, possessed of fleets and armies? If not, to what 


92 


ALIEN AND SEDITION LAWS. 


could they appeal for defense and support? To nothing, except 
public opinion. If that should be against them, they must yield; 
if for them, did gentlemen mean to sa;y, that public will should be 
assailed by force? If so, should a minority, by the 'help of the 
powers of Government, resort to force for its defense against public 
opinion and against a State which was pursuing the only possible 
and ordinary mode of ascertaining the opinion of two-thirds of the 
States by declaring its own and asking theirs? How could the fifth 
article of the Constitution be brought into practical use, even upon 
the most flagrant usurpations ? War or insurrection, therefore, could 
not happen, except Congress should attempt to control public opinion 
by force, and this it could not be supposed they would ever do, not 
only because the will of the people is the sovereign in all Republics, 
but also because both that will and the will of the States were made 
the constitutional referee in the case under consideration. Hence 
a movement toward this referee could never be admitted as leading 
to war or commotion, except in those countries where an armed and 
corrupt minority had usurped the Government and would, of course, 
behold with abhorrence an arbitrament of a majority. Such, how¬ 
ever, he hoped would be the respect to public opinion that he doubted 
not but that the two reprobated laws would be sacrificed to quiet 
the apprehensions even of a single State without the necessity of a 
convention or a mandate from three-fourths of the States whenever 
it shall be admitted that the quiet and happiness of the people is the 
true end and design of government. 

With respect, he said, to the remedy proposed in the talents and 
integrity of the Continental judges, without regarding the prejudices 
which might probably exist in favor of the Government, from which 
an appointment should flow, it might be remarked that the judges, 
by the Constitution, are not made its exclusive guardians. That, if 
Continental judges were the proper referees as to the constitutionality 
of Continental laws, State judges were the proper referees as to the 
constitutionality of State laws; that neither possessed a power over 
the other, whence a clashing of adjudication might ensue; and that 
if either had been superior the same consequences would result as 
would flow from a superiority of Congress or of the States over the 
other, with this additional aggravation, that the people could not 
by their elections influence a constitutional question, to be decided 
by the judges, as they could to a certain extent when it was to be de¬ 
cided by a general or State legislature, an influence, however, insuffi¬ 
cient. because it would require six years to change the Senate of the 
United States, and four that of Virginia, during which an uncon¬ 
stitutional law would have done its mischief, which was yet greatly 
preferable to no influence at all. 

He observed that the resolutions had been objected to as being 
(touched in language too strong and offensive, whilst it had also been 
said on the same side that if the laws were unconstitutional the 
people ought to fly to arms and resist them. 

To this lie replied that he was not surprised to hear the enemies of 
(he resolutions recommending measures which were either feeble or 
rash. Timidity, it was known, only served to invite a repetition of 
injury, whilst an unconstitutional resort to arms would not only 
justly exasperate all good men, but invite those who differed from the 
friends to the resolutions to the same appeal and produce a civil war. 


ALIEN AND SEDITION LAWS. 


93 


Hence those who wished to preserve the peace, as well as the Consti¬ 
tution. had rejected both alternatives and chosen the middle way. 
They had uttered what they conceived to be truth, in firm yet decent 
language; and they h*vd pursued a system which was only an appeal 
to public opinion, because that appeal was warranted by the Consti¬ 
tution and by principle, and because it gave an opportunity to the 
General Government to discover whether they would be faithful to 
the same principle and thereby establish a precedent, which would 
both now and hereafter have a strong tendency against civil war. 
That this firmness, which was both exhibited and felt, was really 
necessary as an act of friendship to the General Government, if it 
was true, as some thought, and as the commotion in the public mind 
plainly indicated, that a further progress in their system was full of 
danger to itself and misery to the people. If, said he, we behold our 
friend already a'dvanced to the brink of a precipice, without having 
discovered it, ought we in friendship slightly to admonish him that 
the very next step might precipitate him into an abyss below, or 
strenuously to warn him of his danger? Again: If a country was to 
be defended, into which the foe could only enter at a single pass, 
which was fortified and garrisoned, ought the resistance of this gar¬ 
rison to be feeble and cowardly, and ought they traitorously to sur¬ 
render this key into their country from a confidence in the enemy? 
Liberty was that country—our Constitution the fortress—and our¬ 
selves the garrison. Shall we, he said, desert our post without even 
a parley with the assailants? If we did the inevitable consequence 
must be a consolidation of these States into one great sovereignty, 
which will from its vast extent as inevitably settle with rapidity into 
a monarchy; and like all other great empires it must resort to those 
oppressions to support itself which make the cup of life bitter to 
man. That such a degree of timidity would be as dishonorable as 
the violent measures which gentlemen on the other side recom¬ 
mended, in cases of constitutional infractions, would be immoral and 
unconstitutional. 

That firmness as well as moderation could only produce a desirable 
coincidence between the States, an example of which having been 
already set by Kentucky, it behooved us so to act as to avoid a 
difference of opinion as to the mode when we united in the end; 
because divisions respecting either would undoubtedly destroy every 
hope of a successful issue. In opposition to the propriety of soliciting 
this coincidence, the Constitution, prohibiting the States from enter¬ 
ing into a confederation among themselves, had been quoted. In reply 
to which he would ask if an application from one State to another 
to learn its sentiments upon a point relative to the Constitution was 
to be considered as unconstitutional—as amounting to a confedera¬ 
tion? In what way could two-thirds of the States consult or unite 
so as to exercise their right of calling a convention under the fifth 
article, or in what way could three-fourths ever amend the Constitu¬ 
tion ? This observation evinced the incorrectness of such a construc¬ 
tion, as had also the practice of the States in submitting each other’s 
resolutions to mutual consideration in a variety of instances. 

Mr. Taylor then said that the constitutionality of the laws had been 
defended Tby the common law. It had been said that the common law 
attaches the rights arising from the law of nations to a sovereignty 
wherever it resides; that therefore a power over aliens devolved under 


94 


ALIEN AND SEDITION LAWS. 


the common law upon Congress; and that sedition being also a com¬ 
mon-law offense they had a right to punish it. If the common law 
bestowed powers upon Congress, it was unnecessary to controvert 
these laws, because there was hardly any species of oppression which 
it would not justify. Heresy and witchcraft were common-law 
offenses; the former was a complete engine for tyranny. But the 
Constitution of the Union did nowhere adopt the common law or refer 
to it as a rule of construction. That as the State constitutions or laws 
had done so under the different forms, it evinced that the States must 
have considered an adoption necessary to give it force; and, thinking 
so, it was impossible that the State conventions which assented to 
the Constitution could ever have supposed that they were establishing 
a Government which could at pleasure dip their hands into the inex¬ 
haustible treasuries of the common law and law of nations and thence 
extract as much power as they pleased. On the contrary, the Con¬ 
stitution of the Union does in its face plainly erect a government 
of powers expressed and limited, and not left to be new modeled 
at random, or by ambition, by a reference to obsolete or little known 
codes of law which had never been taken into contemplation during 
its discussion in any State convention. 

Having now gotten rid of objections rather collateral, Mr. Taylor 
said that he would come to those which more immediately referred 
to the objectionable laws. It had been said that aliens had no rights; 
that if they had, such rights were only held by the law of nations, 
which allows them to be removed whenever their residence is thought 
dangerous by the sovereignty; and assuming it as granted that the 
sovereignty of America is in Congress, it was therefore concluded 
that the law was constitutional. 

In reply to this argument, he observed that Congress only pos¬ 
sessed a special and limited sovereignty, to be exercised in a special 
and limited manner, so as not to conflict with that portion of sover¬ 
eignty retained to the several States, and so as not to violate those 
constitutional principles prescribed for the preservation of liberty. 

That aliens, under the law of nations, were entitled and subjected 
to the sanctions of municipal law, and however their rights as for¬ 
eigners may be unimportant to us as natives, yet it was of vast im¬ 
portance that the fundamental principles of our municipal law 
should not be destroyed because an alien only was the present victim, 
since it established precedents and produced consequences which 
would wound citizens through the sides of aliens. To apply this 
general remark, he said the Constitution was a sacred portion of 
municipal law, it had empowered Congress “to define and punish 
offenses against the law of nations,” and it had declared “ that the 
judicial power shall extend to all cases in law and equity arising under 
this Constitution, or the laws of the United States; and that the 
trial of all crimes shall be by jury.” The law of nations was there¬ 
fore in contemplation whilst defining the judiciary power. If an 
alien has done wrong, must it not be a case in law or equity, or a 
crime? At any rate, must it not be a case arising under the Con¬ 
stitution or the laws of the Union? If so, his punishment, supposing 
(lie act criminal, is to be inflicted by a jury; if not criminal, it 
is yet referred to the judiciary by the comprehensive terms “ all 
cases.” Might not precedents then, violating these essential princi¬ 
ples of our municipal law, be dangerous to citizens, when it was 


ALIEN AND SEDITION LAWS. 


95 


recollected that no difference is contemplated by the law of nations, 
or that municipal law, between aliens and citizens touching these 
rights, during the residence of the former. Again, were not the 
checks contemplated by the Constitution weakened by making a 
President in fact a king of the aliens? Our towns will abound 
with men whose every interest depends upon Executive pleasure. 
Might they not be used to influence elections? And what would 
prohibit their being forced into the volunteer corps, then to be armed 
and officered bv the Executive? Here, then, except for the virtues of 
a temporary Chief Magistrate, was a mode struck out by which a 
large force might be embodied and armed possessing no rights and 
completely dependent on the will of one man. Was this to adjust 
the balances ? Or did it comport with the principles of republicanism ? 
If not, in this mode also might citizens be wounded through the sides 
of aliens. 

A gentleman from Prince George, he said, had urged that except 
from this law the State of Virginia might admit a French army 
with Bonaparte at their head. Of this, he said, there would cer¬ 
tainly be as little danger as that under it a President should admit 
an English army. Because, although it was obvious that no nation 
would call in a foreign force to destroy itself, yet history was not 
deficient in cases wherein individuals have resorted to a foreign force 
to enslave the nation. That he meant not to insinuate anything to 
the injury of the present President, but by retorting the argument 
to show its weakness by exhibiting the difference between suffering 
the residence of foreigners to depend upon the National Legislatures 
and surrendering it as a great prerogative to one man. 

It had been argued, too, that the power given to Congress to protect 
each State against invasion comprised a power of expelling dan¬ 
gerous incendiary aliens; for that Congress ought to be enabled to 
nip dangerous designs in the bud. 

If power could be gotten by inferences as loose as these all attempts 
to limit it might be relinquished. Dangerous designs ought to be 
nipped in the bud. Was it the danger to which the power attached 
and not the alienage? If so, dangerous incendiary citizens might 
also be nipped in the bud without trial and exported at Executive 
will. The protection of a State against invasion is imposed upon 
Congress as a duty secondary only to the guaranty of a republican 
form of Government, and not bestowed upon them as an enlargement 
of power; and the reason of it is that the States are prohibited from 
keeping troops or ships of war in time of peace, which prohibition 
does not extend to the Union. Greatly as this argument had been 
relied on, the propriety of this construction was evinced by two 
observations: One, that the States might as far as they could pro¬ 
tect themselves against invasion, and even raise troops in time of war, 
proving that this was a duty imposed upon Congress and not an 
Executive power. ^ 

The other, that it is also made the duty of Congress to protect the. 
States against domestic violence, but only on application of the State 
legislature or executive. The jealously evidently exhibited here 
against the interposition of Congress, even in cases of actual domestic 
violence, by no means warrants the supposition that they might inter¬ 
pose where apprehensions of danger only existed. Further, if Con¬ 
gress obtained the power constructively from that of repelling inva- 


96 


ALIEN AND SEDITION LAWS. 


sions, there was nothing to limit its exercise to aliens. Again, and 
again, the committee were told of the common law and the sov¬ 
ereignty of Congress. An attempt to excite an insurrection had been 
called an offense at common law; and a power to regulate all cases 
arising under the law of nations, it was said, follows sovereignty. 
Thus every power was bestowed arising from those copious sources. 
He asked, by what part of the Constitution Congress were empow¬ 
ered to punish all common-law offenses, and whether that bar¬ 
barous, feudal, gothic, and bloody criminal code was to be let loose 
upon us by inference and implication? Domestic violence, said he, 
is insurrection. Why was Congress specially directed how to act 
in this common-law offense if they had an unlimited power to pun¬ 
ish all common-law offenses? As to these rights of sovereignty, it 
was fair reasoning to urge that a particular donation of a part ex¬ 
cluded the idea of a donation of the whole by way of inference. If 
this splendid thing called sovereignty had invested Congress with all 
the powers arising from the law of nations, why was it necessary 
particularly to invest Congress with the power of punishing offenses 
against the law of nations ? And if Congress under this sovereignty 
derived to themselves an unlimited power over aliens, how could it 
have been necessary to bestow upon Congress the special power of 
naturalizing these very aliens? This doctrine of the rights of sov¬ 
ereignty was as dangerous as false. Dangerous, because its extent 
could be never foreseen; false, as violating the idea of limiting a gov¬ 
ernment by constitutional rules. From this unlimited source, the 
British Parliament derives its claim of unlimited power. King, 
Lords, and Commons, because sovereign, may do everything. If it 
was admitted here, being in fact a common-law doctrine, it not only 
would absorb the common-law powers and those arising from the 
laws of nations, but also the royal perogatives, and whatever else it 
bestows upon the British Parliament. Such a sovereignty would 
speedily swallow up the State governments, consolidate the Union, 
and terminate in monarchy. 

Mr. Taylor said that the laws objected to had been largely de¬ 
fended within and without doors, upon the ground of laws with simi¬ 
lar provisions having been passed in this State. 

Without stopping, he said, to point out the .strong distinguishing 
features between the State laws and those of Congress, it would suf¬ 
fice to show the inefficacy of the argument upon other grounds. 
The powers surrendered to Congress and reserved to the States are 
by the Constitution evidently designed to be defined, whether success¬ 
fully or not; it was yet impossible to deny the intention of that instru¬ 
ment to concede certain powers to one and to reserve certain other 
powers to the other. If, then, it was a sound argument to assert that 
Congress may legislate upon a subject because a State has already 
done so—that is, that the exercise of the reservation by a State shail 
enlarge the concession in favor of Congress—it followed that the 
reservation so soon as it was used was lost, and that even the limita¬ 
tions upon congressional power ought to be understood as only de¬ 
signed to extend it. Further, perhaps, no State Constitution in 
America exhibits that clear and explicit restraint upon a legislative 
interposition respecting the freedom of religion, the press, and peti¬ 
tioning which was to be found among the amendments of the Gen¬ 
eral Constitution. Was it defensible then to assert that Congress, 


ALIEN AND SEDITION LAWS. 


97 


though opposed by this positive constituent barrier, were yet empow¬ 
ered to legislate coextensively upon these subjects with a particular 
State having no such obstruction to surmount? 

He said that this extravagant and unjustifiable mode of constru¬ 
ing the Constitution had even been carried so far as to quote Black- 
stone and a private letter of Mr. Jeffersosn; so that if this instru¬ 
ment was to be expounded not by itself, but by the law of nations, 
the common law of England, the laws of the several States, the opin¬ 
ions of English judges, and the private letters of individuals, it had 
only launched us upon the ocean of uncertainty, instead of having 
conducted us into a safe and quiet harbor. That Blackstone’s defini¬ 
tion of the liberty of the press, considered as accurate by the gentle¬ 
man on the other side, amounted to this; “The right of publishing 
anything not prohibited by law without the necessity of obtaining a 
previous license.” He wholly quibbles away the liberty of the press 
in the whim of considering the necessity of a license as the only 
mode of destroying it, whilst he also admits that Government may 
prohibit it from printing whatever it pleases. Was it not obvious 
that the end meditated by the liberty of the press can as effectually 
be defeated in one mode as the other, and that if a Government can 
by law garble, suppress, and advance political opinion, public in¬ 
formation, this great end upon which public liberty depends will be 
completely destroyed? According to this construction the Consti¬ 
tution of America has only declared that Congress shall not inter¬ 
cept writings by a previous examination and allowance or-rejection, 
but that they may make whatever writings they please illegal and 
penal in any extent. Read, said he, the Constitution and consider 
if this was all it meant to secure. 

Mr. Jefferson’s letter, he said, was written before the amendment 
to the Constitution which it recommended, but upon which it could 
not, of course, be a comment, and therefore this letter, if it had lent 
any aid to the gentleman on the other side, would be more than bal¬ 
anced by that sublime and just construction of the Constitution 
itself as to the liberty of the press, to be found in the negotiations 
of the late envoys to France. But this letter, as well as plain legal 
principles, had been egregiously misunderstood, and both, upon ex¬ 
amination, would be found to support the argument against the laws. 
The letter, whilst recommending those securities for which the amend¬ 
ment to the Constitution was afterwards designed, urges as an argu¬ 
ment that all were legally answerable for false facts published 
injuring others. This is the letter and this the legal principle upon 
which a common action of slander was grounded, and laws reaching 
this evil existed before the sedition act in every part of the Union. 
By a small but important deviation both from the letter and the law 
a great and dangerous delusion was resorted to by the gentlemen on 
the other side. Falsehood, said they, is punishable by law, and Mr. 
Jefferson admits that it ought to be so; and the sedition law punish¬ 
ing falsehood only, both the laws and Mr. Jefferson have united in 
its approbation previous to its existence. The great error in this 
doctrine arose from dropping the word “ fact ” and taking that of 
“falsehood,” which includes “opinion” as well as fact. Fact was 
capable of proof, opinion was not. To say that such laws as the 
alien and sedition existed would be to assert a fact, and if he (Mr. 

52068—S. Doc. 873, 62-2-7 


98 


ALIEN AND SEDITION LAWS. 


Taylor) was prosecuted for it it might be proved. But to assert 
that these laws were unconstitutional and oppressive and productive 
of monarchy would be an opinion constituting a degree of crimi¬ 
nality under the sedition law subjecting a man to punishment, and 
yet it was not a fact capable of being proved. Hence, therefore, the 
laws of the land and Mr. Jefferson’s letter unite in confining punish¬ 
ment to the publication of false facts, and hence opinions were only 
made punishable in tyrannical governments, because there was nq 
standard to determine the truth or falsehood of opinion. 

But, he said, it had been violently objected that, supposing these 
laws are unconstitutional, the State legislature could have nothing to 
do with the subject, because the people alone are parties to the com¬ 
pact called the Constitution of the United States. 

To this objection he answered that although the framers of the 
Constitution chose to use the style “ we, the people,” yet it was 
notorious that in every step from its commencement to its termina¬ 
tion the sense of the people respecting it appeared through the 
medium of some representative State assembly, either legislative or 
constituent. That the Constitution itself in many parts recognizes 
the States as parties to the contract, particularly in the great articles 
of its amendment and that of admitting new States into the Union 
without a reference to the people, and that even the government of 
the Union was kept in motion as to one house of the legislature 
by the act of the State sovereignties. That, added to these incon- 
testible arguments to show that the States are parties to the com¬ 
pact, the reservation of powers not given, was to the States, as well as 
to the people, recognizing the States as a contracting party, to whom 
rights were expressly reserved. From all which it followed, though 
it be not denied, that the people are to be considered as parties to 
the contract, that the States are parties also, and as parties were 
ji^stifiable in preserving their rights under the compact against vio¬ 
lation. Otherwise their existence was at an end, for if their legis¬ 
lative proceedings could be regulated by congressional sedition laws, 
their independency and, of course, their existence were gone. And 
although it had been within and without doors often asserted that 
the sedition act does not extend to words spoken, yet if any gentle¬ 
man would read the first section and consider the terms “ counsel or 
advise ” he would find that words are clearly within its letter and 
that this part of the law seems particularly adapted for a deliber¬ 
ative assembly. He said he could not but observe that this doctrine 
that the people are to be considered as the only parties to the com¬ 
pact was incomplete. The idea of a person’s contracting with him¬ 
self was absurd. Where was the other party? He feared, though 
it was not avowed, that the gentlemen were glancing toward the old 
doctrine of a compact between government and people, a doctrine 
which effectually destroyed the supremacy of the people and the in¬ 
dependence of government no less than "the monstrous doctrine of 
allegiance and protection, which falsely supposes that the people are 
indebted to the Government for safety, whereas it is they who erect, 
support, and protect the Government. That it was also curious to 
observe that gentlemen alldw the State governments to have been 
proper organs of the will of the people, whilst blinding them by the 
measures leading to the Constitution, and that they still allow these 
organs to be capable of expressing their will in the election of Sena- 


ALIEN AND SEDITION LAWS. 


99 


tors and doing any other acts for the execution of the Constitution, 
whilst they deny that they are any organs of public will for the sake 
of opposing an infringement of the same Constitution. Thus in 
framing it and in executing it in a great variety of ways the will of 
the people was allowed to express itself through this medium, but 
in saving it from violation it shall be closed up against them, so that 
there shall be as few obstacles as possible against this violation. The 
people may petition Congress, said gentlemen, against the violation, 
and this was the only proper remedy. Let us, said Mr. Taylor, apply 
this remedy to another case. Suppose a State should by law violate 
the Constitution. Would there be no other remedy but for the 
people to petition that State or for the judges of that State to decide 
upon the constitutionality of the law ? Why would there be another 
remedy? Because the Constitution, having bestowed rights upon 
the General Government, a violation of the Constitution which should 
infringe those rights would justify that Government to take measures 
for its own preservation, because the Constitution does not leave the 
remedy to depend upon a petition of the people to the aggressor. 
Reverse the case, said he. If Congress should unconstitutionally in¬ 
fringe rights reserved to the State governments, should they depend 
upon a petition of the people to the aggressor for their defense? 
They were then conducted, he said, to this clear position, that as Con¬ 
gress holds the rights bestowed by the Constitution under that and 
independent of the States, so the States hold the rights reserved by 
the Constitution under that and independent of Congress, and of 
course that each power possesses the further right of defending these 
constitutional rights against the aggressions of the Other, for other¬ 
wise it would follow that the power having constitutional rights to 
maintain, which was, however, unconstitutional, must presently dis¬ 
appear. 

He said that the last argument in favor of the sedition act had been 
drawn from the law of Virginia respecting treason, which had been 
read. 

With respect to this law, he replied that the same arguments 
applied which he had before used to show the impropriety of quot¬ 
ing State laws to justify congressional. It would be as just to say 
that a State could pass laws for raising fleets and armies because 
Congress had done so, as that Congress could infringe the liberty of 
speech because the States had done so. The States are expressly 
forbid to do the one and Congress the other. But this reference to 
the treason law of Virginia furnished a strong argument to prove 
the unconstitutionality of the sedition act. The law evidently con¬ 
siders sedition as being one species constituting that genus called 
treason, which was made up of many parts. It therefore accurately 
expresses the idea of Virginia of the word “ treason,” and shows how 
she understood it, as used in the Constitution. By that treason is 
limited to two items, with the punishment of which only the General 
Government is intrusted. Hence it was evident that Virginia could 
not have conceived that Congress could proceed constitutionally to 
that species of treason called sedition; and if this was not the true 
construction, what security was derived from the restriction in the 
Constitution relative to treason ? Congress might designate the acts 
there specified by that term, and they might apply other terms to all 
other acts, from correcting which that clause of the Constitution in- 


100 


ALIEN AND SEDITION LAWS. 


tended to prohibit them; by doing which, as in the case of sedition, 
they might go on to erect a code of laws to punish acts heretofore 
called treasonable, under other names, by fine, confiscation, banish¬ 
ment, or imprisonment, until social intercourse shall be hunted by 
informers out of our country; and yet all might be said to be, con¬ 
stitutionally done, if principles could be evaded by words. 

Mr. Tayior concluded with observing that the will of the people 
was better expressed through organized bodies dependent on that will 
than by tumultuous meetings; that thus the preservation of peace 
and good order would be more secure; that the States, however, were 
clearly parties to the Constitution as political bodies; that rights 
were reserved to them which reservation included a power of preser¬ 
vation ; that the legislature of the State was under a double obliga¬ 
tion to oppose infractions of the Constitution as servants of the 
people and also as the guardian of those rights of sovereignty, and 
that qualified independence reserved to the State governments by 
the Constitution; and to act up to this duty was the only possible 
mode of sustaining the fabric of American policy, according to the 
principles prescribed by the American Constitution. 

Mr. Bayley arose next, to reply, he said, to the very extraordinary 
arguments which had fallen from the gentleman from Caroline, and 
was proceeding to do so, but finding that such a noise prevailed from 
the impatience of the committee to rise that he could not be distinctly 
heard, he declined and sat down. 

On motion, the committee then rose, the chairman reported prog¬ 
ress, asked and had leave for the committee to sit again. 


In the House of Delegates, 

Friday , December 21, 1798. 

The house resolved itself into a committee of the whole house on 
the state of the Commonwealth, Mr. Breckenridge in the chair, when, 
Mr. John Taylor’s resolutions being still under consideration. 

Mr. George K. Taylor arose and said that when these resolutions 
were first submitted to the committee they had been disapproved by 
him, and that the time which had since elapsed, with the most mature 
reflection, had quickened his disapprobation into complete aversion 
and entire disgust. The resolutions contained doctrines and princi¬ 
ples the most extravagant and pernicious; declarations unsubstan¬ 
tiated by fact, and an invitation to other States to concur in a 
breach of that Constitution which they professed to support. To 
substantiate this charge he would beg the pardon and patience of the 
committee while he examined and criticized certain parts of the reso¬ 
lutions, and while, agreeably to a promise given on a former occasion, 
he should offer some few remarks on the constitutionality of what is 
called the sedition law. 

The third clause of the resolutions begins in the following terms: 

That this assembly doth explicity and peremptorily declare that it views the 
powers of the Federal Government as resulting from the compact to which the 
States alone are parties. 

This declaration, however explicity and peremptorily made, was 
unfounded and false; the States are not the only parties to the Fed- 



ALIEN AND SEDITION LAWS. 


101 


«ral compact. ^ Considered as particular sovereignties of detached 
parts of the Union, they did not give it birth or organization; the 
State legislatures were not consulted respecting its adoption. It was 
the creature of the people of united America; their voice spoke it into 
birth; their will upholds and supports it. To demonstrate this it 
would be necessary to recur to the history of the present Constitution 
and to examine some of its features. 

When the British colonies in America, now the United States, dis¬ 
solved their connection with the parent country and declared them¬ 
selves independent they entered into certain Articles of Confedera¬ 
tion and Union. This was an act of the States. It was begun by 
the State Representatives in Congress. The Articles of Confedera¬ 
tion, when digested, were sent to the legislatures of every State for 
consideration. They were ratified by the legislature of each State 
in the Union. They profess themselves to be articles of confedera¬ 
tion and perpetual union between the States; they relate, in every arti¬ 
cle, not to the people but to the States; they were submitted to and 
adopted by, not the people, but the States; and of them it may truly 
be said that they were “ a compact to which the States alone were 
parties.” 

As these Articles of Confederation acted exclusively on the States, 
and as they prescribed no method of compelling delinquent States to 
obey the requisitions of Congress, their weakness and inefficacy 
became shortly visible. The most pressing demands were disre¬ 
garded or partially obeyed, and the evils and expenses of war were 
thus protracted and increased. Still, however, the American spirit 
and love of freedom rose superior to every difficulty, and obtained, 
after an arduous struggle, peace and independence. No sooner was 
the danger removed which had hitherto compelled some respect to 
the recommendations of Congress than the impotence of that body 
became conspicuous, and the futility of that plan of government 
which possesses no sanction to enforce obedience to its laws was 
demonstrated. In defense of our liberties a considerable debt had 
been incurred. Justice and policy called on the United States to 
pay the interest of this debt if they could not discharge the principal, 
but they called in vain. Congress indeed recommended that a duty 
of 5 per cent ad valorem should for this purpose be laid on all goods 
imported into the United States, but their recommendation was dis¬ 
regarded. The certificate given to the soldier for his toil and blood 
in the day of battle depreciated and became worthless; every public 
contract was uncomplied with; a total disregard prevailed as to 
national sentiment and honor; symptoms of distrust, jealousy, and 
rivalship among the several States appeared. The Union seemed 
fast crumbling into annihilation, and the national character at home 
and abroad was sunk and degraded. The people of America began 
to be sensible of their situation. Delegates were at first sent from a 
few of the States to Annapolis for the purpose of devising and 
recommending commercial arrangements. These delegates recom¬ 
mended that a convention from the several States should be ap¬ 
pointed for the purpose of revising and amending the Articles of 
Confederation. Their idea was adopted. Each State appointed 
delegates to this convention, and it assembled at Philadelphia for the 
purpose of proposing amendments to the Articles of Confederation. 


102 


ALIEN AND SEDITION LAWS. 


The deliberation of a few days convinced the convention that an 
amendment of that instrument was impracticable and that no gov¬ 
ernment could be efficient or permanent which operated not on the 
individuals of the community, but altogether on the State sover¬ 
eignties, and which could not compel obedience to its laws by the 
punishment of the disobedient and refractory. They adopted, there¬ 
fore, a plan at once bold and judicious. It was to recommend a 
new form of government for general purposes, by taking from the 
States the control of all matters relating to the general welfare and 
vesting these in the Government of the. Union; by dividing this 
Government into legislative, executive, and judiciary departments, 
which should at once prescribe and enforce the rules of general con¬ 
duct, without the aid or intervention of the State legislatures, and 
which should have power to punish the disobedient and refractory. 

Here it was to be observed, he said, that the convention acted with¬ 
out the express authority of the State legislatures. They were 
deputed to amend the old Articles of Confederation; they were not 
authorized to propose new forms of government. Their love of 
country, indeed, induced them to attempt a scheme or project of 
government to be submitted to their fellow, citizens, and their wis¬ 
dom enabled them to accomplish its structure. But the State gov¬ 
ernments were no parties to this project, since they deputed the 
authors of it for different purposes and were ignorant of the change 
about to be recommended. 

That the convention itself did not consider that the States were, 
or would be the only parties to this compact, was evident from the 
language used in the commencement of the new Constitution, “ We, 
the people of the United States, in order to form a more perfect 
union, etc.”; not “ We, the States of New Hampshire, etc.”; yet they 
had the old Articles of Confederation before them, where the States 
were constantly mentioned, and the people not once named. Why 
was the word “ States ” purposely discarded and the word “ people ” 
purposely introduced if, as these resolutions declare, the States alone 
are parties to the compact ? 

The convention, after having finished the Constitution, came to 
the following resolutions: 

Resolved, That the preceding Constitution be laid before the United States 
in Congress assembled and that it is the opinion of this convention that it 
should afterwards be submitted to a convention of delegates chosen in each 
State by the people thereof, under the recommendation of its legislature, for 
their assent and ratification; and that each convention assenting to and rati¬ 
fying the same should give notice thereof to the United States in Congress 
assembled. 

Resolved, That it is the opinion of this convention that, as soon as the con¬ 
ventions of nine States shall have ratified this convention, the United States 
in Congress assembled should fix a day on which electors should be ap¬ 
pointed, etc. 

The former Articles of Confederation, being in truth a compact 
of the States, were submitted to the State legislatures. The Con¬ 
stitution of the United States was “ submitted to a convention of 
delegates chosen in each State by the people thereof.” The Articles 
of Confederation were assented to and ratified bv the State legisla¬ 
tures. The Constitution of the United States was assented to and 
ratified by conventions chosen in each State bv the people thereof. 
If the States in their political corporate capacity be, as the resolu- 


ALIEN AND SEDITION LAWS. 


103 


tions declare, the only parties to the latter compact, why was its 
consideration submitted not to the State legislatures but to the 
people of the United States in their several conventions? 

Again, so soon as the conventions of nine States should have rati¬ 
fied the Constitution, the convention recommended that a day should 
be fixed for the appointment of electors, etc., in order that the Gov¬ 
ernment should be put into operation. Why should the commence¬ 
ment of the operations of the Government be postponed until the 
coiwentions of nine States should have ratified the Constitution? 
Because the States were extremely unequal in size and population, 
and consequently a majority of conventions might have ratified the 
Constitution, when in truth a majority of the whole people had 
rejected it; but this could not be the case when the conventions of 
nine States had ratified, because any 9 States formed a majority 
of the people contained in the 13. Did not this circumstance, then, 
prove that the present is a Government proceeding from the people, 
and that they are material, if not the exclusive original parties to it? 
If so, how could it be said that the States alone are parties to the 
compact? 

Further, the fifth article of the Constitution declares that— 

The Congress, whenever two-thirds of both Houses shall deem it necessary, 
shall propose amendments to this Constitution, or, on the applications of the 
legislatures of two-tliirds of the several States, shall call a convention for pro¬ 
posing amendments. 

In each of these modes of obtaining amendments, the people are 
evidently recognized as parties to the compact: “ Congress, whenever 
two-thirds of both Houses shall deem it necessary, shall propose 
amendments;” but one House of Congress, the House of Represent¬ 
atives, is the immediate representative of the people; the other 
House, the Senate, is the immediate representative of the States; 
whenever, then, two-thirds of the representatives of the people and 
two-thirds of the representatives of the States shall concur in deem¬ 
ing it necessary, they may propose amendments. Was not this a 
recognition that the people generally, as well as the particular State 
sovereignties, are interested in the operations of the Government? 
How then could the States alone be said to be the parties to it? 
“ Or, on the applications of the legislatures of two-thirds of the 
several States, shall call a convention for proposing amendments.” 
Here the idea was still supported, that the Representatives of a 
majority of the whole people must combine in the application, which 
majority it is supposable will be two-thirds of the States. The 
article proceeds— 

which (amendments) in either case shall be valid to all intents and purposes, 
as part of this Constitution, when ratified by the legislatures of three-fourths 
of the several States, or by conventions in three-fourths thereof, as the one or 
the other mode of ratification may be proposed by the Congress. 

Thus Congress might, if they should think proper, divest the States 
in their political corporate character of all agency in ratifying 
amendments by submitting them not to the legislatures of the States, 
but to conventions of the people. Did this prove that the States 
alone are parties to this compact? 

At the time of our separation from the Government of Great 
Britain the people of each State in the Union, represented in con¬ 
vention, established for that State a constitution or form of govern- 


104 


ALIEN AND. SEDITION LAWS. 


ment. This having been established by the immediate Representa¬ 
tives of the people, deputed for that particular and especial purpose, 
is not amendable or alterable except by the same people or their 
Representatives, deputed for that special purpose; yet the second 
clause of the sixth article of the Federal Constitution, is in the fol¬ 
lowing words: 

This Constitution, and the laws of the United States, which shall be made in 
pursuance thereof: and all treaties made, or which shall be made under the 
authority of the United States, shall be the supreme law of the land; and the 
judges in every State shall be bound thereby, anything in the Constitution or 
laws of any State to the contrary notwithstanding. 

By this clause the Constitution, laws, and treaties of the United 
States are declared to be paramount and superior to the constitu¬ 
tion and laws of every particular State; and where they may come 
into collision the latter must yield to the former. Who could have 
deprived the State constitutions of their former supremacy, and made 
then subservient not only to the Constitution, but to the constitutional 
laws and treaties of the United States, except the sovereign people, 
the source and fountain of all power? And after this should w T e be 
told that the States alone are parties to the compact, when so plain 
and palpable a proof was exhibited to the contrary? 

Let those, said Mr. Taylor, who charge us with antirepublican 
sentiments, and with political blindness or heresy, examine this part 
of their own creed and declare whether it savors of republicanism 
or orthodoxy? We have long and fondly cherished the idea that all 
government in America was the work and creature of the people; 
we have regarded them with reverence and bowed down before their 
supremacy. But it was reserved for this period and for this legisla¬ 
ture to convince us of our error, and to prove that in America, as in 
Turkey and in France, the people are nothing, and that the State 
legislatures are everything. 

The fourth clause of the resolutions is in the following words: 

That the general assembly doth express its deep regret, that a spirit has 
in sundry instances been manifested by the Federal Government to enlarge its 
powers by forced constructions of the constitutional charter which defines 
them; and that indications have appeared of a design to expound certain 
general phrases (which having been copied from the very limited grant of 
powers in the former Articles of Confederation were the less liable to be mis¬ 
construed), so as to destroy the meaning and effect of the particular enumera¬ 
tion, which necessarily explains and limits the general phrases; and so as to 
consolidate the States by degrees into one sovereignty, the obvious tendency 
and inevitable result of which would be to transform the present republican 
system of the United. States into an absolute, or at best, a mixed monarchy. 

The charge against the Federal Government contained in this 
clause, Mr. Taylor said, was of the most serious nature, and merited 
mature deliberation before it should be adopted. If it be true, that 
Government was criminal indeed, and merited, not reprehension 
only, but the severest chastisement ; if it be true, the present admin¬ 
istrators of that Government should be hurled from their seats with 
universal execration, and submitted to the vengeance qf a justly 
enraged people. 

If it be true it was our duty to advise, and it was the duty of our 
constituents to practice opposition and resistance; to draw the sword 
from the “sleep of its scabbard,”. and to cut out this foul cancer 
before its roots shall have taken too fatal a spread. But was it true? 


ALIEN AND SEDITION LAWS. 


105 


If it be, in what instances was it so? The resolutions declared that 
a spirit to enlarge its powers and to consolidate the States so as 
to introduce monarchy has been manifested by the General Govern¬ 
ment in sundry instances.’’ What were those instances? Would it 
not have been kind and proper to enumerate them, when it w^as to 
enlighten the blindness of those less keen sighted than our legis¬ 
lative illuminati? For we, said he, who approve not these resolu¬ 
tions, discern not in the Government these 66 forced constructions 
of the constitutional charter ”; those “ designs to consolidate the 
States by degrees into one sovereignty ”; those unconstitutional 
efforts “ to enlarge its powers so as to transform the present repub¬ 
lican system into an absolute, or at best, a mixed monarchy.” On 
the contrary, said lie, we suppose that we see the best form of govern¬ 
ment ever devised by human sagacity, wisely administered, so as to 
promote and increase the general prosperity and happiness of the 
people. We ask, Where is there seen so much real happiness, pros¬ 
perity, and liberty as in these United States? We demand whether 
the sun, from his rising in the morning until his setting beams are 
quenched in the west, beholds so fortunate a people? Why, then, 
should we interrupt their repose, disturb their harmony, and poison 
their tranquillity by unfounded suggestions that their Government 
means to rivet monarchy upon them ? The “ sundry instances ” of 
this intention, mentioned during this debate, were a fleet, an army, 
taxes, the alien and sedition laws. What causes have given birth 
to these measures? A preconcerted plan of the Government to in¬ 
troduce monarchy? No! They derive their origin from a more 
noble source; from a determination to reject with disdain the inso¬ 
lent demand of tribute to a foreign nation; from a proper care to 
protect our commerce from the piratical depredations of that nation; 
and from a fixed resolve to vindicate our soil from hostile invasion. 
Let us, I pray you, said he, recollect the history of late events. Has 
not our Government sent repeated embassies to France, and have not 
those embassies been repeatedly and contumeliously rejected? Was 
not Gen. Pinckney threatened with imprisonment? Were not the 
three envoys insulted with a demand that their country should be¬ 
come tributary to France; and was not that country threatened with 
the fate of Venice if the demands should be refused? Was there a 
man among us who could bear the idea of paying tribute to any 
foreign country ? And when the consequence of the refusal has been 
aggravated depredations on our trade and the threat of erasing us 
from the list of nations, was there one so base who would not pre¬ 
pare for defense ? What was the situation of things when our small 
Navy was first equipped? Numbers of French picaroons at the 
mouths of all our principal rivers lay in wait for our ships, and 
few of them escaped. What, said he, has been the consequence since 
that Navy has been equipped? These pirates have been chased to 
their homes; our coasts are no longer insulted; the price of the pro¬ 
ductions of our soil has increased; and our flag floats on the ocean, 
respectable and respected. Was not this measure more wise, more 
patriotic, and more economical than to have permitted our trade 
still to be the prey of French cruisers and to have suffered a vital 
wound to be inflicted on the industry and happiness of our citizens 
from the diminished value of their commodities, which would have 
been the unavoidable result? Will not, said he, this Navy enable us, 


106 


ALIEN AND SEDITION LAWS. 


in case of invasion, to transport men and the munitions of war im¬ 
mediately and expeditiously from one port to another of the Union ? 
Will it not be able to gall and distress an invading enemy ? Why, 
then, shall so wise and so necessary a measure be construed into an 
effort to crush republicanism and establish monarchy on its ruins ? 

But the regular army, which is to be raised, will be the death of 
cur liberty. Standing armies in all countries have been the engines 
of despotism, and they will become so in this. 

Fortunately, there are two clauses in the Constitution of the 
United States which prove that so long as the representatives of the 
people remain uncorrupt no great danger can be apprehended from 
standing armies. The first clause of the seventh section of the first 
article declares that “ all bills for raising revenue shall originate in 
the House of Representatives.” The twelfth clause of the eighth 
section of the same article gives Congress power “ to raise and sup¬ 
port armies,” but declares “ that no appropriation of money for that 
use shall be for a longer term than two years.” It is Congress and 
not the President who are to “ raise and support armies.” Armies 
can not be raised and supported without revenue. The bills for rais¬ 
ing this revenue must originate in the House of Representatives. 
Appropriations of money to raise and support an army shall not be 
for a longer term than two years. The House of Representatives 
itself is elected for two years only. After a first or at most a second 
appropriation for this purpose, a new election of Representatives 
must take place. 

If the new House of Representatives deem the Army useless or 
dangerous, they will refuse to appropriate for its support, and it 
must be disbanded. Thus the danger to be apprehended from an 
army raised for an indefinite period appears not to be great. But 
the present Army, from the terms of its enlistment, was to continue 
in service only during the existing differences with France. After 
they shall cease it will be disbanded, and while they continue it must 
be necessary. For let it be remembered that our foe possesses a lust 
of dominion insatiable; armies numerous and well disciplined, in¬ 
ured to conquest and flushed with victory; officers alert and skillful; 
commanders distinguished and renowned. Let it be remembered 
that she is as destitute of friends as of principle, and that as she has 
sent one army under Bonaparte to pillage the East as a compensa¬ 
tion for their services, she may send another for the same purposes 
to rifle the West. Against this host of invaders, hungry as death 
and insatiable as the grave, shall we oppose only militia ? In such 
a conflict what would be our chance? A band of militia illy armed 
and completely undisciplined to measure weapons with men inured 
to blood and with whom murder is a science! How long would our 
militia be able to remain in the field ? Each man among them would 
at first be hurried from his plow and from the embraces of his 
wife and children with scarcely a moment’s warning. That wife 
and those children would soon require his return, or the farm would 
remain uncultivated, and distress and misery would be their por¬ 
tion. The first detachment of militia must then within three or four 
months be relieved by another. At the moment when they have 
formed an idea of the first rudiments of war they would be suc¬ 
ceeded by others completely new and undisciplined. Was an army 
thus composed likely to prove effectual in resisting the invasion of 


ALIEN AND SEDITION LAWS. 


107 


veterans inured to combat and ^accustomed to victory? Did the ex¬ 
perience of the late war with Great Britain demonstrate the super¬ 
lative efficacy of militia? Why were the Southern States plundered, 
ravaged, and for a time subdued by Cornwallis? Because he was 
opposed principally by militia whose want of skill could not resist the 
British bayonet. Was the patriotism of the men of 1776 to be now 
disputed? It could not be. Yet they had recourse to regular sol¬ 
diers, by whom the great and important victories of America were 
obtained, and who, when peace was reestablished, although unpaid 
and distressed, returned peaceably to their homes and their firesides. 
Of whom was that Army composed? Of our fathers and our breth¬ 
ren. Of whom will the present Army be composed? Of our breth¬ 
ren and our sons. Who led that Army to battle and to conquest? 
Washington. Who will conduct this? The same great and good 
Washington. Will he whose virtue and honor have been proved in 
the most trying seasons, whose fame has never been surpassed in the 
annals of mankind, and who is the constant theme of applause and 
admiration throughout the globe, in his latter days prove so degen¬ 
erate as to become the tool of ambition and the destroyer of liberty? 
Of that liberty which his exertions established, and of that Consti¬ 
tution which he contributed to frame, to organize, and to administer ? 
The idea was too absurd to be seriously entertained, and, therefore, 
this- part of the subject he said he would dismiss with the follow¬ 
ing observation: A regular army was principally composed of men 
who, having from choice embraced the military profession, did nof 
by their absence materially impede the labor of the society or occa¬ 
sion domestic difficulties and distress. Of militia, a great proportion 
were fathers of families, whose absence from their homes was ex¬ 
tremely inconvenient and ruinous. The death of the regular soldier 
was of little comparative importance; the death of the militiaman, 
who leaves behind him a wife and family of young children, was a 
serious evil. The Regular Army was prompt, skillful, and effectual; 
the militia army must always be languid in its operations, undis¬ 
ciplined, and ineffectual. Instead then of aiming at monarchy our 
Government labors by the establishment of this Army to secure suc¬ 
cess to our efforts for freedom and to spare a lavish and ruinous 
waste of the blood of our citizens. 

Taxes, he said, are the necessary result of warlike preparations. 
These we have been compelled to adopt by the insolence, the machi¬ 
nations, and the hostilities of France, They are the present price 
of our independence, and where the stake is so precious no real 
American could begrudge them. 

In the fifth clause of the resolutions— 

the general assembly doth particularly protest against the palpable and alarm¬ 
ing infractions of the Constitution, in the two late cases of the Alien and Se¬ 
dition Acts passed at the last session of Congress. 

On the subject of the alien law, Mr. Taylor observed that he had 
before given his ideas at large and should at present only repeat that 
from the authorities adduced by him on a former occasion and from 
the reason of the thing it appeared that the entry of an alien into 
any country was matter of favor in the sovereign power of that coun¬ 
try and not matter of right on the part of the alien. During his 
stay the country to which he has migrated affords him hospitality 


108 


ALIEN AND SEDITION LAWS. 


and protection. During the same period he owes respect and obedi¬ 
ence to its laws. But the country exacts from him no allegiance; 
he is not bound to fight the battles of that country; he is exempt 
from serving in the militia; he is not subject to the taxes that have 
only a relation to the citizens; he retains all his original privileges 
in the country which gave him birth; the State in which he resides 
has no right over his person, except when he is guilty of crime; he 
is not obliged, like the citizens, to submit to all the commands of the 
sovereign; but, if such things are required from him as he is not 
willing to perform, he may at will quit the country. The Govern¬ 
ment has no right to detain him except for a time and for very par¬ 
ticular reasons. The writers on the law of nations therefore univer¬ 
sally agree that the nation has a right to send him away whenever 
his stay becomes inconvenient or dangerous to its repose. 

The Constitution of the United States, from its preamble and from 
every article and section of the instrument, demonstrates that it was 
the intention and design of its framers to vest every power relating 
to the general welfare and tranquillity of the Union in the General 
Government. Each particular case could not be foreseen, and there¬ 
fore the powers are given in general terms, and conclude with the 
particular power— 

to make all laws which shall be necessary and proper for carrying into execu¬ 
tion the foregoing powers, and all other powers vested by the Constitution 
in the Government of the United States or in any department or officer thereof. 

With this palpable intention of its framers in our view, we ought 
to give to the instrument a liberal as well as candid interpretation. 
If the General Government possesses not the power of removing 
dangerous aliens, but that power is vested exclusively in the par¬ 
ticular States, one of the principle views of the old confederation 
would remain in all its vigor. While through the instrumentality of 
these characters insurrection and treason are maturing into birth, 
the Government will of itself be unable to avert the mischief, and 
must humbly supplicate 16 independent and jealous sovereignties 
to carry its designs for the public safety into effect. It must dis¬ 
close to each State the most important and delicate secrets, as that 
State will require testimony before it begins to act. It may in re¬ 
peated instances be subjected to the mortification and danger of a 
refusal, and the alien might frequently depart from one State willing 
to exclude him and take refuge in another determined to protect 
him. Thus the peace and safety of the Union might at all times be 
endangered; and the same Government which can declare war against 
the foreign nation shall not, before that event takes place, be able 
to exclude from its soil the most dangerous and abandoned subject 
of that nation, although his residence may be the bane of public 
tranquillity. 

Congress has power “to provide for calling forth the militia to 
execute the laws of the Union, suppress insurrections, and repel in¬ 
vasions.” When the insurrection or invasion has taken place Con¬ 
gress may by the militia suppress the one and repel the other. But 
the Constitution declares, further, that— 

the United States shall guarantee to every State in this Union a republican 
form of government, and shall protect each of them against invasion ; and on 
application of the legislature, or of the Executive (when the legislature can 
not be convened), against domestic violence. 


ALIEN AND SEDITION LAWS. 


109 


The power before recited had given Congress power to call forth 
the militia to suppress insurrections and repel invasions. The sec¬ 
tion last mentioned directs them to protect each State against invasion 
and domestic violence. Are these two clauses of precisely the same 
meaning and import? Then the framers of the Constitution were 
guilty of tautology. But they are not of the same import. The first 
gives the power of suppressing insurrections and repelling invasions 
when insurrections or invasions should exist; the latter directs Con¬ 
gress to protect each State against invasions or domestic violence 
which might threaten and impend. Protection necessarily implies and 
includes the prevention of mischief and danger. In protecting the 
States, then, against invasion Congress must use the means of pre¬ 
venting the evil, and the clause before recited gives them in express 
terms the power to make all laws necessary and proper for carrying 
into execution any power vested in them by the Constitution. Con¬ 
gress then foresaw, from the dispute existing between the United 
States and France, that war might be the probable result and that 
invasion might be the consequence of war. To protect the States 
against this invasion a proper measure appeared to be the exclusion 
of dangerous aliens. They were vested by the Constitution with 
powers to pass all laws necessary and proper to protect the States 
against invasion, and they therefore constitutionally passed the 
alien law. 

But against this construction of the Constitution, Mr. Taylor said, 
a gentleman from Orange had given the committee an extract from 
Publius, of which it could only be said that the doctrine contained 
therein, although unquestionably sound and incontrovertible, did not 
appl} T to the present question. To prove this, let the extract itself, 
he said, be read again. It is in the following words: 

It has been urged and echoed that the power to lay and collect taxes, duties, 
imposts and excises, to pay the debts, and provide for the common defense and 
general welfare of the United States amounts to an unlimited commission to 
exercise every power which may be alleged to be necessary for the common 
defense or general welfare. 

No stronger proof could have been given of the distress under 
which these writers labor for objections than their stooping to such 
a misconstruction. 

Had no other enumeration or definition of the powers of the Con¬ 
gress been found in the Constitution than the general expressions 
just cited, the authors of the objection might have had some color 
for it, though it would have been difficult to find a reason for so 
awkward a "form of describing an authority to legislate in all pos¬ 
sible cases. A power to destroy the freedom of the press, the trial 
by jury, or even to regulate the course of descents or the forms of 
conveyances must be very singularly expressed by the terms “to 
raise money for the general welfare.” Publius afterwards proceeds 
to state other arguments exposing the fallacy of the opinion urged 
by the opposers of the Constitution against this article. But let it 
be remembered that the subject which Publius was discussing was 
this—whether the power given Congress “to lay and collect taxes, 
duties, imposts and excises, to pay the debts, and provide for the 
common defense and general welfare ” gave to Congress a right of 
legislating on every subject whatsoever. Now, who among us, said 
Mr. Taylor, has.cited this clause in favor of the alien law? Has any 


110 


ALIEN AND SEDITION LAWS. 


one of us, continued he, contended that Congress possesses the right 
of legislating on every subject? And because this clause does not 
give them such a power did it follow that the power to protect the 
States from invasion does not authorize them, on the prospect of war, 
to exclude dangerous aliens? Some authority more applicable must 
be produced before we shall be proved to be in the w T rong. In defense 
of the alien law Mr. Taylor observed that he would make no further 
observations but would call the attention of the committee for a few 
minutes to what is called the sedition law. In his remarks on this, 
from the wide range he had taken, he should be compelled to be 
much more concise than he had intended to be. 

He presumed that it would be conceded by all who heard him that 
each individual possessed from nature certain rights of great value 
and importance. Among these was the right to liberty and to life, 
and what was of no smaller importance than the other two, the right 
to his good name and reputation. For even in a state of nature, where 
the will of each individual was his law and his power the measure 
of that law, and where consequently eternal strife and confusion 
must prevail, a good name would be of no small importance to its 
possessor. He who when chance or misfortune had thrown his 
brother savage into his power did not rob or abuse him, but bound 
up his wounds and dismissed him in peace, would be respected by 
the man he had benefited and by all others who should hear of the 
circumstance, and would in consequence be in some degree secure 
against insult and attack. But -in a state of society the possession 
of reputation must for obvious causes- be of infinite importance. 
This state was the result of a compact formed by the component 
individuals for the enjoyment of their natural rights to greater 
advantage and with greater certainty. Each owes to the regulations 
of the society implicit obedience, and the society is equally bound to 
guarantee and to vindicate to each his natural and social rights. 
Invasions, therefore, against property, liberty, or life have been pun¬ 
ished in every society and under every form of Government; but 
the natural right to reputation is as dear and invaluable to its pos¬ 
sessor as any other whatsoever; it is essential to his comfort and 
happiness; he could never be supposed to have consented to its sur¬ 
render; and invasions of it ought therefore to be punished by the 
society as well as invasions of property, liberty, or life. For no pos¬ 
session whatsoever is of such real value as an honest fame—in com¬ 
parison with it the possession of property is of little consequence. 
Property in reality adds nothing to the respectability of its pos^ 
sessor. When lost-it may be regained; or if forever lost its former 
owner may still be respectable. But the loss of reputation is much 
more serious mischief. It is irretrievable. Who could bear to be 
regarded by his fellow citizens as destitute of principle and honor 
and to be viewed by the world w T ith contempt and detestation ? Who 
would be unaffected at being deprived by the stroke of calumny of 
the friend he loved ? Whose feelings would remain untortured when 
the mistress he adored, whose smiles were those of affection and 
whose eyes proclaimed the dominion of love, should be everlastingly 
estranged from him? When that bosom which before glowed with 
genial and sympathetic fires should, touched by the breath of calumny, 
become cold and icy as the everlasting snows that envelop the 
pole? Such were the mischiefs accruing from the loss of reputa- 


ALIEN AND SEDITION LAWS. 


Ill 


tion to the individual in his private capacity. But suppose him pos¬ 
sessed of those virtues which dignify human existence and of those 
talents which adorn it, and wishing to exert those virtues and those 
talents in a public capacity for the benefit of his fellow citizens, if 
his reputation be blasted or his character tainted he would be spurned 
by those citizens from their presence; his talents would render him 
an object of greater odium; he would remain hated and despised 
through life and execrated even after his death. Was the loss of 
property, then, to be compared with this injury? Nay, was not the 
loss of character equal or superior in mischief to the loss of 
existence ? 

The murdered man dies an object of universal sympathy and re¬ 
gret—the recollection of his virtues is cherished and his foibles and 
vices are excused or forgotten. But the man whose reputation is 
tainted lives an object of universal contempt and disgust and dies the 
theme of infamy and execration. Accordingly, in every society and 
throughout all time, a remedy has been afforded to the injured indi¬ 
vidual for calumnious attacks upon his reputation. And what would 
be the consequence of impunity to such an offense? The injured 
man, having no redress from the laws of his country, would arrogate 
to himself the right of revenge, and a mournful scene of assault, 
bloodshed, and death would be the unavoidable and melancholy re¬ 
sult. These things could not be tolerated in a state of society; and, 
accordingly, slander and libels are punished with us by the common 
law. By the common law is understood the unwritten law of nature 
and reason, applying to the common sense of every individual, and 
adopted by long and universal consent. This common law attaches 
itself to every government Which the people may establish. It ex¬ 
isted in Great Britain when our ancestors migrated from that coun¬ 
try, and it followed them to this. It prevailed in every State 
throughout the Union, before their separation from the British Em¬ 
pire, and it regulates the whole American people now. A Govern¬ 
ment then established by that people for the general safety and gen¬ 
eral happiness will of necessity be guided in cases of general interest 
and concern by the principles and regulations of the same common 
law. By that common law unfounded calumny of magistrates gen¬ 
erally was matter of punishment, of a more severe punishment than 
in cases affecting the reputation of private individuals, because in 
the former instance the function rather than the man was the object 
of attack. And whenever magistrates of a new description are ap¬ 
pointed the old principles of the common law immediately apply to 
them, and calumnies against them are, of course, punishable. Thus 
when these States became independent of Great Britain a number 
of officers of Government was created unknown to the former co¬ 
lonial establishments; but no one had ever thought it necessary to 
declare by statute that slanders of them shall be punishable. When 
the Constitution of the United States was formed a new description 
of officers, before unknown, was created; the common law pervaded 
and regulated every portion of the people which formed that Con¬ 
stitution; and consequently the rules of the common law immedi¬ 
ately attached themselves to those officers. Consequently slanders of 
the President of the United States, of Members of Congress, and of 
other officers of the General Government-are punishable by the com¬ 
mon law, because slanders of those characters are injuries not so 


112 


ALIEN AND SEDITION LAWS. 


much to the man as to the community. Ours is a Government Avhich 
must rest for its support on the public sentiment. While the people 
approve it, it will flourish; when they withdraw their affections, it 
must expire. Unfounded calumnies against the officers of Govern¬ 
ment, who administer and conduct it, tend to weaken the confidence 
and affection of the people for the Government itself. The Constitu¬ 
tion of the United States, it is acknowledged by all, authorizes the 
Government to punish acts of resistance to its measures. Would it 
not be strange if, when it authorizes them to punish acts of resist¬ 
ance, it should prevent them from punishing acts tending to introduce 
resistance? That the Government must look on tame and passive 
while the mischief is preparing and be incapable of action until that 
mischief has ripened into effect, when its actions and operations may 
perhaps be unavailing? That it shall be fully able to suppress and 
punish actual insurrection, but shall be incapable of preventing it? 
This would surely be absurd. And as the Constitution of the United 
States is the work of the whole American people, as every man of 
that people is regulated by the common law, as that common law 
attaches itself to the State governments, established by that people, 
and punished unfounded calumnies of State magistrates, why shall 
it be said not to attach itself to the Government of the whole Amer¬ 
ican people? And why shall it not punish unfounded calumnies of 
the magistrates of the General Government? Why is the State 
magistrate protected by the common law? Because he is a public 
functionary, and calumnies of him injure the public. Was not a 
magistrate of the General Government also a public functionary? 
Would not calumnies against him also injure the public? And if 
the functionary of the part be protected 'by law, how shall it be said 
that the functionary of the whole is left unprotected? Surely rea¬ 
son proclaims that in proportion to the magnitude of the trust re¬ 
posed in the functionary would be the mischief arising from false, 
scandalous, and malicious representations of his conduct. The most 
unfounded calumnies against the governor of a particular State 
could only rouse the discontent or excite the opposition of that State. 
But unfounded calumnies against the President of the United States 
may paralyze, convulse, and destroy the Union. The reason of the 
common law applies, therefore, more powerfully to the magistrate 
of the General Government than to the magistrate of the State gov¬ 
ernment. But this is the general feature of that law, and of reason, 
that the person being a magistrate of whatever grade or descrip¬ 
tion, and being vested with the authority of the laws, ought to be 
protected. 

That the principles of the common law apply to the General Gov¬ 
ernment is obvious from the second section of the third article of 
the Constitution, which declares that “ the judicial powers shall ex¬ 
tend to all cases in law and equity arising under this Constitution, 
the laws of the United States, and treaties made, or which shall be 
made, under their authority,” and “ to controversies to which the 
United States shall be party.” The judiciary, in cases arising under 
the laws of the United States, will be regulated by those laws; and 
in cases arising under treaties by those treaties and the law of na¬ 
tions; but what cases can arise under the Constitution, as distin¬ 
guished from cases arising under the laws of the United States and 
under treaties, except cases to be decided by the rules and principles 


ALIEN AND SEDITION LAWS. 


113 


of the common law ? And these in “ controversies to which the 
Unitea States shall be party” will, unless altered or modified by 
law, operate in their full extent. 

This is not the only instance in which the common law is recog¬ 
nized in the Constitution, for the ninth amendment is in these words: 

In suits at common law, where the value in controversy shall exceed $20, 
the right of trial by jury shall be preserved: and no fact tried by a jury shall 
be otherwise reexamined in any court of the United States than according to 
the rules of the common law. 

When in the reexamination of facts tried by a jury the courts of 
the United States are expressly prohibited from observing any other 
than the rules of the common laAV, the Constitution itself declares 
that the common law applies to those courts; and if it applies in one 
instance it must apply in all others coming within their sphere, un¬ 
less where it is altered by act of Congress. 

The common law has been thus shown to apply to the Government 
of the United States as well as to the governments of the particular 
States and to particular individuals. One rule of the common 
law is— 

that he who writes, utters, or publishes a false, scandalous, and malicious 
libel against a magistrate or the Government shall be punished by fine and 
imprisonment. The writer, utterer, or publisher, therefore, of a false, scanda¬ 
lous, and malicious libel against the Government of the United States, or any 
magistrate thereof, is at common law punishable by fine and imprisonment. 

The objection to the punishment of libels, that truth is the suffi¬ 
cient antagonist of error, and needs no assistance, Mr. Taylor said, 
was not correct; that falsehood was light and volatile, she flew on 
the wings of the wind, she spread her mischiefs with inconceivable 
velocity; that truth was the child of experience and the companion 
of time; she scarcely ever outstripped and rarely kept pace with her 
companion. What mischief in all ages and in all countries have been 
occasioned to individuals and to the public by malignant falsehoods, 
before truth could arrive to detect and protect them. How would 
those mischiefs be aggravated if they should remain unpunished by 
the laws ? The fairest reputation, when frequently assailed, must be 
diminished in the public esteem. Each scandalous report finds some 
believers; and at length the most charitable will be disposed to think 
that such repeated charges could not be made without some founda¬ 
tion. They will increase in proportion to the talents and the station 
of the injured individual, and unless they be punished by the laws 
the most splendid abilities and unsullied virtues must cease to be 
useful and sink into disgrace. 

Mr. Taylor said, from what had been said it would appear that the 
right to punish libels against Government, or its officers, is founded 
in the principles of nature, of reason, and of common law. The act 
of Congress on this subject, said he, punishes nothing before unpun¬ 
ishable; it creates no new crime; it inflicts no new punishment; but 
on the contrary it mollifies and alleviates the rigors of the common 
law, for at common law the amount of the fine and the time of im¬ 
prisonment are unlimited and regulated only by the discretion of 
the court trying the offense; by the act in question the fine is limited 
at the utmost to $2,000 and the imprisonment to two years. 

52068—S. Doc. 873, 62-2-8 


114 


ALIEN AND SEDITION LAWS. 


But the opposers of this law assert that however the principles of 
the common law may apply to the Government of the United States, 
in ordinary cases, and whatever might have been their original 
power to punish libels, this power is now taken away by the third 
amendment to the Constitution. 

This amendment is in the following words : 

Congress shall make no law respecting an establishment of religion or pro- 
Iiibiting the free exercise thereof, or abridging the freedom of speech or of the 
press. 

The difference of the terms used in this amendment, Mr. Taylor 
said, was remarkable. 

Congress shall make no law respecting an establishment of religion or pro¬ 
hibiting the free exercise thereof. 

Consequently they dare not touch the subject of religion at all. 
But further, they “shall make no law abridging the freedom of 
speech or of the press ”; not “ respecting the freedom of speech or of 
the press.” When religion is concerned, Congress shall make no law 
respecting the subject; when the freedom of the press is concerned, 
Congress shall make no law abridging its freedom; but they may 
make any laws on the subject which do not abridge its freedom. And 
in fact, the eighth section of the first article of the Constitution 
authorizes them in express terms— 

to promote the progress of science and useful arts by securing for limited 
times, to authors and inventors, the exclusive right to their respective writings 
and discoveries. 

' Now, if Congress could not make any laws respecting the freedom 
of the press, they could not secure for limited times to authors their 
respective writings by prohibiting those writings from being pub¬ 
lished and vended except by those whom the authors should expressly 
permit. They may consequently make laws respecting the press, pro¬ 
vided they do not abridge its freedom. To abridge the freedom of 
the press, Mr. Taylor said, was to impose upon it restraints or prohi¬ 
bitions which it did not experience before; or to increase the penalties 
attached to former offenses accruing from its licentiousness. If, then, 
the sedition law does impose upon the press restraints or prohibitions 
which it did not experience before that act was passed, or if it in¬ 
creases the penalties attached to former offenses arising from its 
licentiousness, it was conceded to be unconstitutional. 

But it had been demonstrated, he said, that the common law em¬ 
braces and attaches itself to the Constitution and Government of the 
United States; and that it punishes with indefinite fine and imprison¬ 
ment the writing, uttering, or printing false, scandalous, and ma¬ 
licious libels, when the act in question then only punishes the same 
false, scandalous, and malicious writings by fine and imprisonment 
to a definite amount and for a definite period it does not impose upon 
the press restraints or prohibitions which it did not experience before, 
nor does it increase former penalties; it therefore does not abridge 
its freedom, and is consequently constitutional. To suppose that 
because Congress are prohibited from making laws abridging the 
freedom of the press they can not punish the vile slanders and in- 
fampus calumnies which from time to time issue from it against the 
Government, Mr. Taylor said, was to suppose that the people of 


ALIEN AND SEDITION LAWS. 


115 


America had given a solemn and constitutional sanction to vice and 
immorality; that they had completely privileged the infamous offense 
of lying, and that every individual had consented, in case of his being 
employed by the United States, to release the society from the pro¬ 
tection and vindication of his natural right to reputation. 

The persons who framed the amendments to the Constitution of 
the United States were certainly men of distinguished abilities and 
information. Among them was a great proportion of lawyers, whose 
peculiar study had been the common law. Perhaps every one of them 
had read and maturely considered Blackstone’s Commentaries; these 
wrnuld inform him that in England the terms “ freedom of the press ” 
had an appropriate signification, to wit, exemption from previous 
restraint on all publications whatever; with liability, however, on 
the part of the publisher to individuals or the public for slanders 
affecting private reputation or the public peace. Certainly every one 
of them was acquainted with the laws of his own State, where the 
terms “ freedom of the press ” had precisely the same meaning as in 
England. When, then, in the amendments to the Constitution they 
speak of “ the freedom of the press,” must it not be presumed they 
intended to convey that appropriate idea annexed to the term both 
in England and in their native States? And a reference to Black- 
stone will clearly point out both the emancipation of the press in 
that country from its former shackles and the true import and mean¬ 
ing there and here of the term “ freedom of the press.” “ The art of 
printing,” says that valuable writer, “ soon after its introduction was 
looked upon (as well in England as in other countries) as merely a 
matter of State and subject to the coercion of the crown. It was 
therefore regulated with us by the King’s proclamations, prohibitions, 
charters of privilege and of license, and, finally, by the decrees of 
the court of star chamber, which limited the number of printers and 
of presses which each should employ, and prohibited new publica¬ 
tions, unless previously approved by proper licensers. On the dem¬ 
olition of this odious jurisdiction in 1641, the long Parliament of 
Charles I, after their rupture with that prince, assumed the same 
powers as the star chamber exercised with respect to the licensing of 
books, and in 1643, 1647, 1649, and 1652 issued their ordinances' for 
that purpose, founded principally on the star chamber defcree of 
1637. In 1662 was passed the statute 13 and 14, Car. II, ch. 33, which 
(with some few alterations) was copied from the parliamentary ordi¬ 
nances. This act expired in 1679, but was revived by Statute I, James 
II, ch. 17, and continued till 1692. It was then continued for two years 
longer by Statute IV, W. & M., ch. 24; but though frequent attempts 
were made by the Government to revive it in the subsequent part of 
that reign, yet the Parliament resisted it so strongly that it finally 
expired, and the press became properly free in 1694, and has ever 
since so continued.” The same writer thus elegantly defines the lib¬ 
erty of the press. 

The liberty of the press is, indeed, essential to the nature of a free State, 
but this consists in laying no previous restraints upon publications and not in 
freedom from censure for criminal matter when published. Every freeman 
has an undoubted right to lay what sentiments he pleases before the public. 
To forbid this is to destroy the freedom of the press; but if he publishes what 
is improper, mischievous, or illegal, he must take the consequence of his own 
temerity. To subject the press to the restrictive power of a licenser, as was 
formerly done, both before and since the Revolution, is to subject all freedom 


116 


ALIEN AND SEDITION LAWS. 


of sentiment to the prejudices of one man and make him the arbitrary and 
infallible judge of all controverted points in learning, religion, and government. 
But to punish (as the law does at present) any dangerous or offensive writings 
which, when published, shall on a fair and impartial trial be adjudged of a 
pernicious tendency, is necessary for the preservation of peace and good order, 
of government and religion, the only solid foundations of civil liberty. Thus 
the will of individuals is still left free. The abuse only of that free will is 
the object of legal punishment. Neither is any restraint hereby laid upon 
freedom of thought or inquiry. Liberty of private sentiment is still left. The 
disseminating or making public of bad sentiments, destructive of the ends of 
society, is the crime which society corrects. 

“A man,” says a fine writer on this subject,may be allowed to keep 
poisons in his closet, but not publicly to vend them as cordials.” 
And to this we may add that the only plausible argument hereto¬ 
fore used for the restraining the just freedom of the press, “ that 
it was necessary to prevent the daily abuse of it,” will entirely lose 
its force wdien it is shown (by a seasonable exertion of the laws) 
that the press can not be abused to any bad purpose without incur¬ 
ring a suitable punishment, whereas it never can be used to any good 
one when under the control of an inspector. So true will it be found 
that to censure the licentiousness is to maintain the liberty of the 
press. 

In England, said Mr. Taylor, the laying no previous restraints 
upon publications is freedom of the press. In every one of the United 
States the laying no previous restraints upon publications hath 
always been and still is deemed freedom of the press. In England, 
notwithstanding the freedom of the press, the publication of false, 
scandalous, and malicious writings is punishable by fine and im¬ 
prisonment. In every one of the United States, notwithstanding the 
freedom of the press, the publication of false, scandalous, and ma¬ 
licious writings is punishable in the same manner. If the freedom 
of the press be not therefore abridged in the government of any par¬ 
ticular State by the punishment of false, scandalous, and malicious 
writings, how could it be said to be abridged when the same punish¬ 
ment is inflicted on the same offense by the Government of the whole 
people. 

If it should be thought that this point required further elucidation, 
let us, said Mr. Taylor, look for it in the constitution of the State 
of Virginia. It had been said that the General Government, being 
constituted for particular purposes, possesses only such powers as 
are granted, and this was conceded to be true. It had been also said 
that the State governments, being constituted for the general regu¬ 
lation of the people in each State, possess all powers which the peo¬ 
ple have not expressly retained to themselves, and this for the sake 
of argument shall also be granted. Yet it would not be disputed 
that the powers retained by the people to themselves in their State 
constitution are as sacred and inviolable as those retained by the 
people to themselves in the Constitution of the United States. Now, 
the people of Virginia in their State constitution appear to have 
been as jealous of this freedom of the press as were the people of the 
United States in the formation of the Federal Constitution. For 
if the Constitution of the United States declares that Congress shall 
“ make no law abridging the freedom of speech or of the press,” the 
constitution of Virginia, in the twelfth article of the bill of rights, 
declares “ that the freedom of the press is one of the great bulwarks 
of liberty and can never be restrained but by despotic governments.” 


ALIEN AND SEDITION LAWS. 


117 


The Legislature of Virginia, therefore, Mr. Taylor said, could no 
more pass a law restraining the freedom of the press than Congress 
could pass a law abridging the freedom of the press. The liberty of 
the press could not be restrained without being abridged. 

Yet it had never been doubted that false, scandalous, and malicious 
writings are punishable in Virginia. In the year 1792, the legisla¬ 
ture of this State passed a law “ against divulgers of false news,” 
and no one suggested that the liberty of the press was thereby re¬ 
strained. In the same session another act was passed, declaring 
that any person who shall, by writing or advised speaking, endeavor 
to instigate the people of this Commonwealth to erect or establish 
any government separate from or independent of the government of 
Virginia, within the limits thereof, without the assent of the legis¬ 
lature of this Commonwealth for that purpose first obtained, shall be 
adjudged guilty of a high crime and misdemeanor and on conviction 
shall be subject to such pains and penalties, not extending to life or 
member, as the court before whom the conviction shall be shall 
adjudge.” Neither was this law deemed unconstitutional. Now, 
of the Legislature of Virginia could pass laws punishing divulgers 
of false news and writers advising the people to particular detri¬ 
mental acts without restraining the freedom of the press, could not 
the Legislature of the Union punish false, scandalous, and malicious 
writings tending to destroy the Government, or to bring it into 
hatred and contempt, without abridging the freedom of the press? 
To say that they could not was to declare that punishing the licen¬ 
tiousness is abridging the freedom of the press, and that licentious¬ 
ness and freedom are synonymous terms. 

Every man, continued Mr. Taylor, has a right to freedom of 
action, but no one supposed that this bestowed upon him the right 
to assault another on the highway. Everyone has a right to the 
freedom of the press, but should he use it so as to assault the happi¬ 
ness of an individual or the repose of society without being liable to 
punishment for the mischief he had occasioned? 

It had been said that false, scandalous, and malicious libels against 
the Government of the United States or any officer thereof are 
punishable in the courts of each State, respectively, but this was be¬ 
lieved to be incorrect. Libels against State magistrates or such 
officers of the General Government as reside in Virginia are pun¬ 
ishable in our State courts, because the injured persons reside within 
the limits of the State, contribute to its support, and are entitled to 
protection from it; but libels against the magistrates of a foreign 
nation, or of a sister State, or of the General Government residing 
out of this State are not punishable in our courts, because the injured 
individuals in these cases are not bound by our State laws, do not 
sustain the burthens, or contribute to the support of the Common¬ 
wealth, and are consequently not entitled to its protection. But it 
would not be denied that an infamous slander of the President of 
the United States tending to produce insurrection was equally mis¬ 
chievous if published by a citizen of Virginia as if published by a 
citizen of Pennsylvania. The courts of the United States, therefore, 
must take cognizance of the case or the offense would remain unpun¬ 
ished. Every public incendiary would, by palpable misrepresenta¬ 
tions and abominable falsehoods, continually agitate and convulse 
the minds of the people. That affection toward the Government 


118 


ALIEN AND SEDITION LAWS. 


which alone supports it would shortly be withdrawn, and it would 
speedily fall to rise no more. 

On the sedition law Mr. Taylor said he would make no further 
remarks, but would proceed to other parts of the resolutions. 

The seventh resolution is in the words following: “ That the good 
people of this Commonwealth, having ever felt and continuing to feel 
the most sincere affection to their brethren of the other States, the 
truest anxiety for establishing and perpetuating the union of all, and 
the most scrupulous fidelity to that Constitution which is the pledge 
of mutual friendship and the instrument of mutual happiness, the 
General Assembly doth solemnly appeal to the like dispositions of 
the other States in confidence that they will concur with this Com¬ 
monwealth in declaring, as it does hereby declare, that the acts afore¬ 
said are unconstitutional and not law, but utterly null, void, and of 
no effect, and that the necessary and proper measures will be taken 
by each for cooperating with this State in maintaining unimpaired 
the authorities, rights, and liberties reserved to the States, respec¬ 
tively. or to the people.” 

On this resolution Mr. Taylor said two remarks would be submit¬ 
ted. The legislature of one State in the Union declare two acts 
passed by a majority of the representatives of the whole American 
people, to be unconstitutional and not law, but utterly null, void, and 
of no effect. They declare this, not as an opinion, but as a certain 
and incontrovertible fact; in consequence of which the people of the 
State owe no submission to the laws. Have, continued he, the rep¬ 
resentatives of a part a power thus to control and to defeat the acts 
of the whole? In the Congress of the United States the people of 
each State are fairly and equally represented in proportion to the 
population of that State. If, after a majority in that Congress 
have decided that certain laws are constitutional and expedient, the 
Legislature of Virginia hath a right to annul those laws by declaring 
them to be unconstitutional, the old republican maxim that the ma¬ 
jority must govern was exploded and the Union would be dissolved. 
If the State of Virginia could repeal and annul the alien and sedition 
laws, she could repeal and annul any other acts of Congress, and if 
she has the right every other State must possess it likewise. 

If any act passed by Congress be unconstitutional the judges of 
the Federal court, who are unbiased by party and unwarped by 
prejudice, and who are selected for their superior talents and in¬ 
tegrity, afforded a constitutional check upon the legislature. The 
people themselves are another most powerful check, for they will 
know the vote of their Representatives, and if they deem the law 
for which they voted to be unconstitutional they will order them to 
depart at the ensuing election and replace them with others more 
wise and mere virtuous. Here were two peaceable and happy modes 
of correcting the mischief, whereas for one or more jealous State 
legislatures to endeavor to repel or control the acts of Congress 
by their sovereign power was at once to introduce disunion and 
civil war. The Government of the Union, which might have yielded 
to fair reason and argument, will never give way to the threats or 
force of these rival sovereignties. If they do, the powers and ener¬ 
gies of the Federal Government would be from that moment de¬ 
stroyed. They will determine to try the experiment whether the 
Union shall govern a few States or a few States shall rule the Union. 


ALIEN AND SEDITION LAWS. 119 

The certain consequence will be a resort to arms, civil war and 
carnage, and a probable dismemberment of the Union. 

Of such consequences in such an event the framers of the Con¬ 
stitution were aware. They therefore wisely, in the tenth section of 
the first article declared that “ no State shall, without the consent of 
the Congress, enter into any agreement or compact with another State 
or with a foreign power.” The resolution last cited, however, in¬ 
vited the other States to u take the necessary and proper measures 
for cooperating with this State in maintaining unimpaired the au¬ 
thorities, rights, and liberties reserved to the States, respectively, or 
to the people.” Could other States cooperate with this for these 
purposes, unless by virtue of some previous agreement or compact? 
To cooperate was to act in concert. Must not some agreement or 
compact among the States precede their acting in concert ? It must, 
in-the nature of things. Does not the Constitution forbid this agree¬ 
ment or compact in positive and express terms? Were we not, then, 
inviting our sister States to a deliberate and palpable breach of the 
Constitution, and this at the moment when we were so liberally re¬ 
viling Congress for an imputed breach of the same instrument ? * Did 
their example authorize us to violate what we had solemnly sworn to 
support and preserve ? Or did an act which was not to be tolerated 
in the wicked Congress become venial or laudable when committed 
by the saints composing this assembly? 

These resolutions, continued Mr. Taylor, must have some ultimate 
object, and it had been demanded what that object was. The gen¬ 
tleman from Caroline had answered that it was ultimately to induce 
the States to call another general convention for the amendment of 
the Constitution. How unfortunate and ruinous such an experiment 
would be, the reflection of a few moments must convince us. 

When the circumstances and the time when the convention assem¬ 
bled which formed our present Constitution and the importance and 
difficulty of the task which they undertook and executed were con¬ 
sidered, we had ample cause to return our fervent thanks to the 
Almighty for the issue of their labors. At that time the weakness 
and inefiicacy of the Articles of Confederation was perceived and 
acknowledged by us all; our contracts were undischarged; our credit 
was destroyed ; and our character as a nation was contemptible 
both at home and abroad. All America united in the sentiment 
that a change was essential; all America deputed members to the 
convention which introduced that change. Foreign nations despised 
us too much to interfere in the deliberations of that body or of the 
State conventions which afterwards adopted the instrument. Even 
under these circumstances the harmony with which the plan was 
recommended and the unanimity with which it was adopted were 
subjects of amazement and wonder. 

But what would be the consequence and effect of a convention 
summoned to amend the Constitution at the present moment? Now, 
said he, party spirit unfortunately flames and rages. Some think 
the Constitution as perfect as it could be made, while others consider 
it as the harbinger of monarchy, and others again suppose that the 
powers of Government require an increase of energy and power. A 
spirit of mutual concession could no longer be expected. The dele¬ 
gates from the northern and southern parts of the Union would 
behold each other with jealousy and suspicion. They would never 


120 


ALIEN AND SEDITION LAWS. 


unite in the same project. They might agree, indeed, in pulling 
down the present building, but they would never agree in erecting 
another. 

This, too, is a period when the whole European world is convulsed 
and in arms. Our rising importance attracts their attention and 
excites their fears. 

Even in the present state of things their ministers, and agents were 
continually intriguing among our citizens. Would they remain 
idle and unemployed while the convention was deliberating? Would 
they not afford fuel to the flame of party and prepare the public 
mind to reject every scheme which might be proposed? Was it not 
reasonable to be expected that the consequence of their exertions 
and our own ferments would be confusion, anarchy, civil war, and 
disunion? Enjoying, then, as we do, every happiness to w^hich rea¬ 
son can aspire, shall we, said he, wantonly attempt a change by 
which little could be obtained and everything might be sacrificed? 

In Virginia, Mr. Taylor said, the general sentiment was that the 
Government of the United States verges toward, and will ultimately 
settle in, a monarchy. But the measures of that Government are 
supported by a majority of the House of Representatives and bv 
a still greater majority of the Senate. Erom this obvious proof of 
the prevailing sentiment throughout the Union, was it to be expected 
that another Government would be framed vesting smaller or fewer 
pow r ers in the Executive than he at present exercises? Would not 
our object, on the contrary, be defeated, since the general conven¬ 
tion would probably enlarge instead of diminish the powers of the 
National Government? No other consequence, therefore, could at 
the present time and under existing circumstances follow such an ex¬ 
periment but increase of dissatisfaction and disgust and a more 
ardent disposition to dissever the bonds of union which now con¬ 
nect all America. 

In such a convention in vain should we reckon on the superior 
importance, power, and influence of Virginia. A majority of States 
would never agree to summon another convention unless it should 
be previously agreed and declared that the votes shall be taken, as 
in the former convention, by States. In such a convention, where 
the influence of Delaware or Rhode Island would be as great, and 
their respective votes would weigh as much as those of Virginia 
and Pennsylvania, what would be our chance of carrying our par¬ 
ticular objects into effect? The smaller States already behold us 
with jealousy and apprehension. Each representative w T ould come 
prepared to watch, to oppose, and circumvent every other. North¬ 
ern and southern, eastern and western parties and interests would 
immediately appear, and the convention, after a restless and turbu¬ 
lent session, which would increase instead of diminish the rage of 
faction among their constituents, would rise in confusion. The 
sound of peace would be no longer heard, the sentiment of union 
would no longer continue, but the sword would be drawn, the Union 
forever dismembered, and the bloody history of Europe would be 
retraced in the melancholy annals of divided'and hostile America. 

How sad and gloomy a contrast would such a state of things 
afford to the present flattering and happy aspect of our affairs. At 
this day, said Mr. Taylor, America, united under one government, 
experiences an increase of wealth and population unknown to any 


ALIEN AND SEDITION LAWS. 


121 


other country. Mild and equal laws, industrious and enterprising 
citizens, peace among ourselves, and respect from foreign nations 
render us the envy of every other part of the globe. Mr. Taylor 
then concluded with the following observations: May He who rules 
the hearts of men still dispose us to yield obedience to the constitu¬ 
tional acts of the majority; may He avert the mischiefs which these 
resolutions are calculated to produce; may He increase the love of 
union among our citizens; may no precipitate acts of the Legisla¬ 
ture of Virginia convulse or destroy it; and, to sum up all in one 
word, may it be perpetual. 

Mr. Giles arose next and said as he had but lately appeared be¬ 
fore the committee he would not have obtruded any observations 
upon it had not some remarks which had fallen from gentlemen 
made some impression upon him. Therefore, though unprepared, 
he would make a few observations. He then observed that for sev¬ 
eral years past he had had an opportunity of considering the sys¬ 
tems pursued by both the State government and General Govern¬ 
ment. Of those, he considered the system of Virginia the best and 
mildest, for after 20 years’ operation little mischief could be proved 
to have proceeded from it; but, on the contrary, much good had 
been done by the administration of it in that time. There had been 
no complaint that he had heard respecting the injury of person or 
property, and there had been at the same time less energy in it than 
in any other government whatever. The injunctions of law had 
been duly obeyed, and the laws of the United States particularly, 
as much so here as in any other State. What had been the cause of 
this? Not the rigor but the mildness of the laws. And were such 
principle always to be attended to the necessity of energy in the 
executive branch would never exist. Mr. Giles then asked what 
was that energy. It was despotism. Whence had sprung the dis¬ 
tinction of parties? Not while Virginia was left to herself. He 
then proceeded to pass an high eulogium on her system, which had 
been felt by him in private life, for he confessed that he had never 
acted in a public character in this body before. Whence then did 
party spirit arise? It had been since that new doctrine had taken 
place of strengthening the hands of the Executive of the United 
States to give it an energy. And he proceeded to show of what kind 
that was. Since that period, he said, efforts to resist had originated. 

Mr. Giles then requested the committee to examine the powers of 
the General Government and observe wdiat was the opinion formed of 
them at its commencement. He then mentioned certain systems 
which had been established in the course of its operation, such as 
the funding system, bank, etc. These systems being established, it 
would be thought necessary from time to time to give them energy. 
He said there was a kind of sophistry used by the General Gov¬ 
ernment in assigning that for the means which was in fact the end, 
and stated, for example, the case of invasion and insurrection. The 
sedition law had been called the means for preventing them, but 
he (Mr. Giles) declared the contrary to be the fact. The sedition 
law w T as truly the end, and an invasion was made use of as the 
means to introduce it. He would examine the Constitution, he said, 
and there he found the language as plain as the English language 
could be. Still, however, that language, plain as it was, was avoided 
by calling an end a means. The sedition law then was an end to 


122 


ALIEN AND SEDITION LAWS. 


suppress a certain party in the United States. But it had been pre¬ 
dicted by gentlemen that many mischievous consequences would 
attend the adoption of the plan proposed by the resolutions before 
the committee. Mr. Giles contended, however, that if such conse¬ 
quences did take place, they would not proceed from any act of this 
assembly but from these acts of Congress already passed. As for 
himself, he wished, as much as others, to preserve happiness. His 
efforts were tending to that end. An oath, too, had been spoken of. 
What was it? “To support the Constitution of the United States.” 
It became then the duty of the members of this assembly who had 
taken such an oath to support the Constitution. But it had been 
said that on this occasion a resort must be made to the judiciary' 
and to the people. Why so ? said Mr. Giles. The members of this 
assembly have taken the same oath to support the Constitution as 
the judiciary and the people. It became then as much their duty to 
support it as it was that of the others. He then asked how was the 
Constitution to be supported, and said that it w T as by resisting all 
attacks upon it—not any particular acts only. But the right of the 
members of this assembly to speak their opinions upon the subject 
was questioned. It was said that they must inform the people so; 
that they must do it; that the judges must do it, and that they, their 
Representatives, wished not to do it themselves. Mr. Giles then said 
that the measures of our present Government tended to the estab¬ 
lishment of monarchy, limited or absolute. It had been said, too, 
that the people only were parties to the compact. But, Mr. Giles 
asked, What was an association of people? A Federal ? No; it was 
a social compact. How, then, would they support it as a Federal 
Government if it were only a social compact. The State govern¬ 
ment was truly of the latter kind. The General Government was 
partly of each kind. The objection to the word “only,” then, was 
correct, and before he concluded he should move to strike it out N But 
he acknowledged that they were then acting as a State. The gen¬ 
tleman from Westmoreland had delivered his opinion respecting the 
formation of the Government. In this opinion, Mr. Giles said, the 
gentleman Avas partly correct and partly incorrect. The United 
States would, perhaps, have been in a different situation if what 
the gentleman had asserted had been established. He then pro¬ 
ceeded to show in what manner several States in the Union ap¬ 
pointed their electors to choose a President, which was by their legis¬ 
latures, The Federal idea, then, of the other side was not correct. 
And if, on the other hand, the Government were a social compact, 
he pronounced monarchy to be near at hand, the symptoms and 
causes of which he particularly pointed out, and concluded that 
the State legislatures alone at this time prevented monarchy. He 
then said that in proportion as the powers of the Government were 
extended new excuses for more energy Avoidd arise. And what 
Ayas energy ? A coercing of the public will. He then observed how 
little energy was exerted in Virginia. The energy of the laAvs was 
sufficient. He hoped, then, that the right of the committee to proceed 
to examine the subject would not be denied. The gentleman from 
Prince George had dAvelt upon the present happiness of the people, 
to disprove Avhich Mr. Giles called to mind the rigorous proceedings 
of the Government, and particularly cited the case of MattheAv Lyon, 
whom notAvithstanding the reports propagated to his prejudice, he 


ALIEN AND SEDITION LAWS. 


123 


said, he would aver to be a man of much worth. The effects of these 
laws of Congress were not yet sufficiently known. The medium of 
information had heretofore been contracted and imperfect. This 
House was then undertaking to make them more known. The criti¬ 
cal situation of the United States, too, had been mentioned; that 
France and England both had a view toward us; and that, therefore, 
great caution should be used. 

He then proceeded to take notice of the measures adopted by the 
last Congress. The cause for them held out was the danger to be 
apprehended from a certain foreign power. This cause had produced 
the laws respecting the Navy, the Army, aliens, and the sedition law, 
which last operated upon citizens and not foreigners. Those gentle¬ 
men, he said, w T ho never had been about the seat of government 
could form no conception of the exertions of persons who were con¬ 
tinually infusing into men’s minds the notions of energy. Mr. Giles 
then read an answer of the President of the United States to show 
what he had in view in respect to that foreign power so much feared. 
It was his answ T er to the address of the people of Bath. He read it 
and proceeded to comment on the latter part of it respecting a party 
in Virginia to be crushed into dust and ashes. He asked, what was 
that party ? They were said to be French partisans. But by whom 
were they so called? He asked, too, who were the favorers of the 
resolutions ? Not Frenchmen, but good citizens. This was the party, 
then, to be crushed before the schemes of the President could be 
effected. He said that he could produce more answers of the Presi¬ 
dent avowing the same principles and design as that already cited, 
but he would not tire the committee with them. He declared himself, 
however, to be as good a citizen as the President. Why, then, was 
he to be crushed into dust and ashes ? He then expressed his disap¬ 
probation of the measures adopted by the Government respecting the 
Army and Navy. He asked, of what characters would they be com¬ 
posed? Of the idle and dissipated part of the community. On the 
contrary, who were the patriots who would protect their country? 
This very party mentioned by the President would repel any inva¬ 
sion. It was true they had no arms; but they would find arms. Mr. 
Giles then said that he approved of the argument used by the gentle¬ 
man from Caroline respecting the volunteers, but wished it to be 
somewhat more extended. He thought it a much more serious matter 
than any other. The gentleman from Caroline had used it in regard 
to the President’s enlisting aliens merely. But Mr. Giles said he 
would ask further, of whom those companies were to be composed? 
Not of farmers or farmers’ sons; but chiefly of aliens. He himself 
believed that the operation of the last-mentioned law was intended to 
unite both. But it was said the people would protect the Constitu¬ 
tion ; that the judges would protect it. He then observed that opposi¬ 
tion to foreign power was always the pretense to usurpation. To 
prove that he instanced the case of Rome. There, he said, whenever 
the people found themselves oppressed and solicited redress they 
were told by their rulers that was not the time; that the common¬ 
wealth was in danger; that the Volsci were at their gates. Mr. Giles 
then said that by the measures adopted by the last Congress nothing 
had been left undone to carry us into monarchy. But union was now 
said to be necessary. What was that union for? To abridge the free¬ 
dom of the press." Was that desirable? He compared this to the 


124 


ALIEN AND SEDITION LAWS. 


case of robbers forming a union for the purpose of robbing; and 
said that good was the object of the union of the States and not 
mischief. He then adverted to the distinction between opinion and 
fact. He said Mr. Jefferson’s was a good distinction; and that the 
assertion of false fact was punishable before the sedition law was 
passed; but the assertion of false opinion was not. There was no 
standard to ascertain that; there was, however, in respect to false 
fact. This sedition law, then, deprived men of the freedom of speech. 
It prescribed the punishment of a new thing. Opinion heretofore- 
had ranged at large, had always prevailed. Mr. Giles then asked 
how was the restriction of opinion introduced in France. It was 
brought about in Robespierre’s reign of terrorism. He then asked 
how this party mentioned by the President was to be crushed? In¬ 
carceration would not be sufficient. In regard to the restriction of 
opinion, he compared our situation to that of France in the reign 
of Robespierre. As for himself, he feared not the system, but thought 
the most effectual mode was now pursued to introduce the same des¬ 
potism here as had prevailed in France. He approved the mode 
adopted by the resolutions in making a declaration to conflict with 
other opinions. He then referred to our situation and said that he 
felt himself as much interested as anyone to ward off war; but he 
thought the worst of all things was untimely submission; and that a 
constitutional violation was more degrading than anything. But 
the resolutions had been charged with containing invective. He said 
if there were any it must arise from simple language expressing simple 
truths. However, if better could be used he would be willing to agree 
to it. But he doubted whether should even the Lord’s Prayer be in¬ 
troduced before them and undergo a criticism they could be brought 
to agree to it. It had been said that if this assembly critically ex¬ 
amined the measures of the General Government they should use 
more pleasant terms. But, Mr. Giles said, they were not terms, but 
truths that were unpleasant. He proceeded next to consider the alien 
law and to answer the observations of gentlemen in respect to aliens 
having no rights. 

In advocating the rights of aliens, he said, he did not consider what 
was popular, but what was justice. A stranger coming into a country 
had a right to protection. It was not a matter of favor only. A 
great number of persons already admitted into this country, he said, 
were not citizens. They would be affected by this law. He insisted 
that aliens were not only entitled to a trial by jury, but to that par¬ 
ticular benefit of a jury de medietate linguae by the law in force, both 
in England and here. It had been said, however, that this was not 
a trial of guilt, but to prevent it. That, he said, made no difference. 
A trial was still necessary. He conceived that there was no foreign, 
but a domestic reason for this law. It was said that the French were 
ambitious. But was this a ground, for the laws to affect our domestic 
operations? If they were repealed, the Government would be as firm 
as it was now. The administration, he said, was not the Government. 
The Government could subsist without it. For instance, it was once 
thought in Switzerland that it was necessary to keep a bear amongst 
them for their prosperity and safety. After a while, the bear broke 
his chain and ran away. For some time after the people continued to 
lament his escape and expected that some dreadful calamity would 
befall them. But, after waiting some time and finding that no such 


ALIEN AND SEDITION LAWS. 


125 


calamity arrived, they began to bring themselves by degrees to believe 
that the bear was of no use, and that they could do as well without 
him as with him. Mr. Giles then said that he was as much in favor 
of government asi any man and would contribute as liberally to its 
support, but was not an advocate for improper measures. He then 
proceeded to consider the sedition law. He observed that the gentle¬ 
man from Prince George had mentioned the God of Heaven. But He 
had nothing to do with the Constitution. If He had, it was Om¬ 
nipotent. On the contrary, Mr. Giles said that the powers of Govern¬ 
ment w T ere derived from the Constitution and not from the reason and 
nature of things. Implication, he said, was a dangerous doctrine. 
There was an express prohibition of all powers not granted by the 
Constitution. The Constitution and this law convey to the mind 
different impressions. The derivation of power, he again insisted, 
could not be proved otherwise than from the Constitution. The 
powers not given by that were retained to the States or to the people. 

What, then, was given to each ? The General Government, he said, 
should not be intrusted to decide upon character or in case of 
murder. That power was reserved to the State. That was the proper 
authority for regulating and deciding upon these matters. Mr. Giles 
made some further observations on the last clause of the law last 
mentioned, and then said that declaring these acts of Congress un¬ 
constitutional satisfied the oaths of the members of this assembly. 
He wrnuld agree to stop after that, if they thought proper, and to 
strike out everything beyond it. If gentlemen thought the laws were 
unconstitutional, they were bound to say so; otherwise, it would be a 
dereliction of the oath which they had taken. For his part, he said, 
he should vote for something which would express his opinion upon 
the subject. He would, however, at any rate move to strike out of the 
resolutions before the committee the word “ alone.” 

Mr. Nicholas seconded Mr. Giles’s motion for striking out of the 
resolutions the word “ alone,” and further observed that either the 
gentleman from Prince George or himself misunderstood the gentle¬ 
man from Caroline in respect to calling a convention. He hoped, 
therefore, that the gentleman from Caroline would explain himself 
upon that point. Mr. Nicholas then stated what he understood that 
gentleman to say, which he himself approved, but on the contrary 
did not approve the calling a convention. 

Mr. Bolling said that he understood the gentleman from Caroline 
in the same manner that the gentleman who was last up did in re¬ 
spect to calling a convention. Mr. Bolling also made several observa¬ 
tions to show that the gentleman from Prince George had misunder¬ 
stood Mr. Jefferson’s letter which had been quoted by him. 

Mr. John Taylor said he would explain in a few words what he had 
before said. That the plan proposed by the resolutions would not 
eventuate in war, but might in a convention. He did not admit or 
contemplate that a convention would be called. He only said that if 
Congress, upon being addressed to have those laws repealed, should 
persist, they might, by a concurrence of three-fourths of the States, 
be compelled to call a convention. Mr. Taylor further said that 
while up he would himself move to strike out certain words of the 
resolutions, if the same were in order; which being agreed to with¬ 
out a question taken, Mr. Taylor proceeded to do so. 


126 


ALIEN AND SEDITION LAWS. 


The original resolutions offered by him to the house and referred 
to the committee of the whole house on the state of the Common¬ 
wealth were in the following words: 

Resolved , as the opinion of this committee, that the General Assembly of 
Virginia doth unequivocally express a firm resolution to maintain and defend 
the Constitution of the United States and the constitution of this State against 
every aggression, either foreign or domestic, and that they will support the 
Government of the United States in all measures warranted by the former. 

That this assembly most solemnly declares a warm attachment to the union 
of the States, to maintain which it pledges all its powers, and that for this end 
it is their duty to watch over and oppose every infraction of those principles, 
which constitute the only basis of that union, because a faithful observance of 
them can alone secure its existence and the public happiness. 

That this assembly doth explicitly and peremptorily declare that it views 
the powers of the Federal Government as resulting from the compact, to which 
the States alone are parties; as limited by the plain sense and intention of the 
instrument constituting that compact; as no further valid than they are author¬ 
ized by the grants enumerated in that compact; and that in case of a deliberate, 
palpable, and dangerous exercise of other powers not granted by the said com¬ 
pact, the States, who are parties thereto, have the right, and are in duty bound, 
to interpose for arresting the progress of the evil, and for maintaining within 
their respective limits the authorities, rights, and liberties appertaining to them. 
That the general assembly doth also express its deep regret that a spirit has 
in sundry instances been manifested by the Federal Government to enlarge its 
powers by forced constructions of the constitutional charter which defines them; 
and that indications have appeared of a design to expound certain general 
phrases (which having been copied from the very limited grant of powers in 
the former Articles of Confederation, were the less liable to be misconstrued), 
so as to destroy the meaning and effect of the particular enumeration, which 
necessarily explains and limits the general phrases, and so as to consolidate 
the States by degrees into one sovereignty, the obvious tendency and inevitable 
result of which would be to transform the present republican system of the 
United States into an absolute, or at best a mixed, monarchy. 

That the general assembly doth particularly protest against the palpable and 
alarming infractions of the Constitution in the two late cases of the alien and 
sedition acts, passed at the last session of Congress, the first of which exercises 
a power nowhere delegated to the Federal Government; and which by uniting 
legislative and judicial powers to those of executive, subverts the general prin¬ 
ciples of free government, as well as the particular organization and positive 
provisions of the Federal Constitution; and the other of which acts exercises 
in like manner a power not delegated by the Constitution, but on the contrary 
expressly and positively forbidden by one of the amendments thereto; a power 
which more than any other ought to produce universal alarm, because it is 
leveled against that right of freely examining public characters and measures 
and of free communication among the people thereon, which has ever been justly 
deemed the only effectual guardian of every other right. 

That this State having by its convention which ratified the Federal Consti¬ 
tution expressly declared, “ that among other essential rights the liberty of 
conscience and of the press can not be canceled, abridged, restrained, or modi¬ 
fied by any authority of the United States,” and from its extreme anxiety to 
guard these rights from every possible attack of sophistry or ambition, having 
with other States recommended an amendment for that purpose, which amend¬ 
ment was in due time annexed to the Constitution, it would mark a reproachful 
inconsistency and criminal degeneracy if an indifference were now shown to 
the most palpable violation of one of the rights thus declared and secured and 
to the establishment of a precedent which may be fatal to the other. 

That the good people of this Commonwealth having ever felt, and continue to 
feel, the most sincere affection to their brethren of the other States, the truest 
anxiety for establishing and perpetuating the union of all, and the most scru¬ 
pulous fidelity to that Constitution which is the pledge of mutual friendship 
and the instrument of mutual happiness, the general assembly doth solemnly 
appeal to the like dispositions of the other States, in confidence that they will 
concur with this Commonwealth in declaring, as it does hereby declare, that the 
acts aforesaid are unconstitutional and not law, but utterly null, void, and of 
no force or effect, and that the necessary and proper measures will be taken by 
each for cooperating with this State in maintaining unimpaired the authorities, 
Tights, and liberties reserved to the States, respectively, or to the people. 


ALIEN AND SEDITION LAWS. 


127 


That the governor be desired to transmit a copy of the foregoing resolutions 
to the executive authority of each of the other States with a request that the 
same may be communicated to the legislature thereof. 

And that a copy be furnished to each of the Senators and Representatives 
representing this State in the Congress of the United States. 

The word “ alone ” in the third clause, and the words “ and not law, 
but utterly null, void, and of no force or effect,” in the seventh clause, 
were stricken out of the foregoing resolutions. 

Mr. John Taylor’s resolutions thus amended, being then read by 
the chairman, Mr. Brooke moved to amend the same by substituting 
in lieu thereof the resolution which he had offered to the committee 
on Tuesday, the 18th instant, and which was then laid upon the 
table. The question was put thereupon, and the amendment dis¬ 
agreed to by the committee. The main question was then put on Mr. 
John Taylor’s resolutions, as amended by himself, and agreed to. 

The committee then rose, and Mr. Breckenridge reported that the 
committee of the whole house on the state of the Commonwealth 
had had the same under their consideration, and had come to certain 
resolutions thereupon, which he handed in to the clerk’s table (being 
Mr. John Taylor’s resolutions, as above stated, amended, and agreed 
to by the committee). 

Gen. Lee then arose and observed that although desirous of ending 
the debate, yet wishing with the gentleman from Amelia to meliorate 
the paper before them, by striking out some other part of the resolu¬ 
tions, he would move an amendment to that effect. He then read the 
fourth clause of the resolutions and objected to the same as contain¬ 
ing assertions which he could not believe, and at the same time also 
a high charge against the General Government. He therefore moved 
to strike out that clause. 

Mr. Bolling said, that in order to convince the gentleman from 
Westmoreland of the futility of his proposition, he hoped that no 
other gentleman would disgrace himself and the wisdom of the 
house by gratifying the gentleman with a reply on the occasion. 
He (Mr. Bolling) had arisen, therefore, to second the gentleman’s 
motion and to give him complete satisfaction by bringing the question 
to an end. 

Mr. Giles made some remarks in favor of the clause proposed to 
be stricken out. He stated several reasons to show why it should 
be retained, and concluded by expressing his objection to its being 
stricken out. 

Mr. Nicholas hoped the motion made by the gentleman from West¬ 
moreland for expunging the clause in question would not prevail. 
Without that clause, it was true, he would vote for the resolutions, 
but his anxiety about them would be very much lessened if it was 
expunged, for" then it would appear that none of the measures of 
the Federal Government were objected to but the alien and sedition 
bills. This was not the fact, and it must also be in the recollection 
of many gentlemen in that house that some of those members who 
were now most loud in support of the measures of which he and his 
friends complained, and w r ho denied with most confidence the right 
of the assemblv to interfere, had themselves upon other occasions 
acted very differently and justified that interference. One of the 
gentlemen distinguished himself in a particular instance, for which 
he had his most hearty approbation, as he considered it a subject 


128 


ALIEN AND SEDITION LAWS. 


highly interesting to the happiness of his country. How gentlemen 
could reconcile their opinions at past periods with those they sup¬ 
ported at this day, it was incumbent upon them to show. Mr. 
Nicholas said it was with the deepest regret that he reviewed the 
principal measures of the Federal Government, as they appeared to 
him to tend directly to a consolidation of the . State governments, 
which he believed would eventuate in monarchy. Upon all questions 
about the division of power everything had been given to the Execu¬ 
tive from Congress, everything to Congress from the States. The 
general phrases in the Constitution which were only intended to ex¬ 
plain and limit the powers of the General Government have been 
considered as giving powers, thereby destroying the effect of the par¬ 
ticular enumeration of powers, and of the security derived from the 
twelfth amendment to the Constitution. He would state the par¬ 
ticular acts which he thought most obnoxious. The first in point of 
time were the bank and assumption laws, for which he could find 
no authority in the Constitution of the United States and by which 
the commercial and moneyed interests of the country had been de¬ 
voted to certain individuals and their theories, and concentered a 
force more powerful and operative than an army of 20,000 men. The 
British treaty and its effects were so well known to this house that 
it was unnecessary to dilate upon that subject. The doctrine about 
appropriations of money was so important in its consequences that 
it merited the most serious attention of the people of America. The 
Constitution declares that “ no money shall be drawn from the Treas¬ 
ury but in consequence of appropriations made by law,” notwith¬ 
standing which it is now contended that the President may by his 
single act bind the Congress to make appropriations whether they 
deem them proper or not, thereby transferring from the representa¬ 
tives of the people to the Executive Magistrate the command of the 
national purse. 

The stamp act subjects the people to an obnoxious and inconven¬ 
ient tax, and changes already, and may change still more hereafter, 
the system of evidence which the State laws required in their own 
courts. The ultimate effect of this may be to shut up the State courts, 
for it is even contended that delivery bonds are subject to the tax. 
If this be true, othur process may be taxed, and so highly as may 
amount to a denial of justice; the transferring the important powers 
of borrowing money and raising armies, vested by the Constitution 
in Congress to the President; the utter neglect of the militia; the 
attempt to render them useless and unnecessary, by raising standing 
armies and by authorizing the President to employ any number of 
volunteers that he may think proper, when the only reason for a 
preference of volunteers that occurred to him was that the Presi¬ 
dent had the appointment of the officers of those corps, whereas the 
militia officers were appointed by the State governments, greatly 
excited his suspicion. He confessed his objections to these corps had 
been very much increased since he had seen a letter from the Secre¬ 
tary of War, 1 from which it appeared to him that the design was to 

1 It being deemed important not to accept of companies composed of disaffected per¬ 
sons, who might from improper motives be desirous to intrude themselves into the Army 
under pretense of patriotic association, it will be proper that certificates from prominent 
and known characters, setting forth the principles of the associates, those of the officers 
elect-, especially, and that the company have complied with the prerequisite con¬ 

dition of the law, be also’presented. (Extract of a letter from the Secretary of War 
to an officer of high rank in the militia of Virginia, who had communicated the wish of 
several volunteer companies to tender their services.) 




ALIEN AND SEDITION LAWS. 


129 


arm one part of the people against the other. He well remembered 
that when the Constitution was under discussion great stress was 
laid upon this circumstance; and it was believed it would give great 
security to the State governments and to the liberties of the people, 
but so great a revolution had a few years produced that some gentle¬ 
men were willing to abandon principles that have been heretofore 
deemed the most sacred. The conduct of the Executive in bestowing 
offices, more in the style of rewards for the support of particular 
measures than from any regard to the general merits of the citizens 
called to fill them, and upon the same ground removing from office 
every man who ventures to hazard an opinion in opposition to any of 
the measures that have been pursued, necessarily created alarm. He 
mentioned the removal from office of Mr. Tenche Coxe and Mr. 
Gardiner in support of what he had said, and expressed a fear that by 
these means that numerous and influential class of citizens who ought 
to consider themselves as the public servants might be made the crea¬ 
tures of executive power; and if, said Mr. Nicholas, the day should 
ever come that the office of President should devolve upon an ambi¬ 
tious man, public officers might be made the most powerful instru¬ 
ments to promote his views. The influence would operate upon all 
those who expect or want public employment. 

Mr. Nicholas then observed that there was another subject which 
he felt the greatest pain at mentioning. Nothing but its importance 
and connection with the subject in discussion should induce him to 
do it. The judiciary department of every Government should be 
most pure; there should not be a suspicion of a previous bias upon 
the mind of the judge. Every man who goes into a court ought to 
consider himself as in a sanctuary. The utmost ingenuity of man 
had been exercised to form a judiciary that should be beyond the 
reach of influence. Was the conduct of the judiciary what it ought 
to have been? He had always supposed courts were instituted to 
dispense justice between man and man, between individuals and 
the society, but he feared that facts might be stated from which it 
might be inferred that it was considered by some that there were 
other objects, such as the propagating of particular opinions; that 
there was united in the same man the duties of a missionary and of 
a judge. He said this point of his argument was so disagreeable to 
him that he would not dwell upon it, but would dismiss it with the 
declaration that he felt great pleasure in saying that there were 
judges to whom he had never heard extrajudicial interference in 
political matters attributed. Mr. Nicholas observed that, thinking 
of the measures that he had stated as he did, he could not consent to 
expunge the clause. Indeed, if he did not give his full assent to 
what was stated in that clause, he would have been willing to con¬ 
fine the efforts of the House to procure the repeal of the alien and 
sedition bills. But considering these as a part of a system that 
brought into jeopardy the dearest interests of his country, he thought 
it was their duty to represent to the other States the whole ground 
of the public uneasiness. As to the alien and sedition laws, he 
had intended at an earlier part of the debate to have made some 
observations, but other gentlemen on the same side with himself had 
expressed his opinions better than he could have done. He would 
therefore only say that he considered them as unconstitutional, and 

52068—S. Doc. S73, 62-2-9 


130 


ALIEN AND SEDITION LAWS. 


that if the principle was once established that Congress have a right 
to make such laws, the tenure by which we hold our liberty would be 
entirely subverted. 

Instead of rights independent of human control, we must be con¬ 
tent to hold by the courtesy and forbearance of those whom we have 
heretofore considered as the servants of the people. Mr. Nicholas 
said he had been a member of the convention that adopted the Con¬ 
stitution; that he had been uniformly a friend to it; that he con¬ 
sidered himself as now acting in support of it; that he knew it was 
the artifice of those on the other side to endeavor to attach a sus¬ 
picion of hostility to the Government to those who differed with 
them in opinion For his part, he despised such insinuations, as far 
as they might be leveled at him. He appealed to his past life and 
to his situation for his justification. Upon what gentlemen’s claim 
to exclusive patriotism was founded he was yet to learn. The friends 
of the resolutions yielded to none in disinterested attachment to their 
country, to the Constitution, of the United States, to union, and to 
liberty. The conduct and the motives of all would be judged of by 
the people of this country, to whom they were all known. Mr. 
Nicholas had full confidence that the amendment would be rejected, 
and the resolutions, without further alteration, would meet the ap¬ 
probation of a great majority of that house. 

Gen. Lee said that he wished to refute the observations of the 
gentleman last up, in favor of retaining the clause. (He was pro¬ 
ceeding to do so, when he was interrupted by Mr. Nicholas, who 
observed that the gentleman had misunderstood him, and then 
declared in substance what he had before actually said.) 

After such explanation, Gen. Lee proceeded to justify the measures 
of the General Government in respect to the removal of persons 
from office. As to Mr. Coxe, as far as lie could recollect the circum¬ 
stances of his conduct, he thought his removal proper. And as to 
Mr. Gardiner, he confessed it was a case with which he was quite 
unacquainted. In respect to the judiciary being forward in deliver¬ 
ing their opinions on public measures, he would observe that the 
State judges had done and still did the same. He blamed them not 
for it. For the appointment of men as judges did not deprive them 
of their rights as citizens. But nothing of this kind, he said, would 
prove the propriety of the clause proposed to be stricken out. 

Gen. Lee then observed that he considered the argument of the 
gentleman from Amelia, in respect to the connection between the 
alien law and the law concerning volunteers, weak. For his army of 
aliens, being soldiers by compulsion, would turn against the Presi¬ 
dent instead of assisting him. The gentleman, too, had called in 
question the ends which the Government had in view in raising an 
Army and Navy. Gen. Lee proceeded to answer the objections upon 
that head by pointing out those ends. As to the alien and sedition 
laws, he contended that the only real view in passing them was to 
protect us from foreign invasion. He denied that there was an 
inclination in the General Government to crush a party. The con¬ 
struction placed by the gentleman from Amelia upon the President’s 
answer to the address of the people of Bath was erroneous. Gen. 
Lee then read part of that answer and placed a different construction 
upon the expressions which it contained. He conceived the Presi¬ 
dent’s meaning only to be that it. depended upon Virginia to say 


ALIEN AND SEDITION LAWS. 


131 


whether or not there was a party in the United States to be crushed, 
etc.; not positively asserting on his part that there was such a party. 

Gen. Lee then observed that if the people could govern themselves, 
how could that be done but by obedience to the laws? Their free¬ 
dom could not be preserved by any other mode. For, if the principle 
of obeying the will of the majority was once destroyed it would 
prostrate all free Government. But the gentleman from Amelia had 
considered himself as one of the party to be crushed, alluded to by 
the President, He (Gen. Lee) was surprised at such an idea. That 
gentleman had committed no crime. He had for some time before 
been honored with a seat in Congress. And there, although he had 
generally been in a minority, yet it Avas nothing more than the situ¬ 
ation in which he (Gen. Lee) had often been placed here. In neither 
was there any criminality. A difference, it was true, did exist be¬ 
tween these cases; and he derived consolation from reflecting that, 
though he himself was in a minority here, he was still in a majority 
with that body which properly had the determination of national 
matters. He concluded with hoping that the amendment would pre¬ 
vail. 

Mr. Tyler arose next and said that an able general would fight 
and struggle to the last. When driven from one stronghold he would 
retreat to another; and finding himself no longer able to oppose 
superior numbers he would attempt to divide his enemy. Mr. 
Tyler believed the plan on the present occasion was to divide the 
Republican Members, but he hoped the gentleman’s plan would not 
succeed and that the clause would be retained. He thought it con¬ 
tained solemn truths. 

He doubted not but that many of the measures of the General 
Government had a tendency to monarchy, absolute or limited. These 
measures had been pointed out by the gentleman from Albemarle. 
He would, however, state them over again. Mr. Tyler did so. He 
particularly relied on the growing influence of the Executive, and 
the probability of an alliance with a corrupt monarchy and an open 
rupture with a republic which, he said, had been openly advocated 
by gentlemen of high character. He inquired what had been the 
effects of executive influence in Great Britain. He said that by the 
revolution of 1688 and by several statutes of Parliament passed 
about that time many of the great rights of the people and the prin¬ 
ciples of freedom had been established, but that it might at this time 
be well doubted if the people were more free than they were before 
the revolution. This was to be ascribed to the immense influence of 
the Crown, which had three millions at disposal. He demanded 
what other cause had prevented a reform in Parliament, upward of 
300 of whose members were chosen by a fewer number of electors. 
He asked if there was not some similitude between the systems pur¬ 
sued by our administration and that of Great Britain. He said that 
the people of Great Britain were clamorous for peace, and Lord 
Malmesbury was sent to make peace, but he returned and made no 
peace. He would not follow the comparison. Our fears, he said, 
had been assailed. He inquired whom were we to fear. He feared 
no man and no measure, but that of offending the people ; and he be¬ 
lieved that the people Avere neA^er offended at any effort to maintain 
their rights or to protect their liberties. The gentleman from West¬ 
moreland had said that the gentleman from Amelia could not con- 


132 


ALIEN AND SEDITION LAWS. 


sider himself as one of the party to be crushed, and had asked what 
crime that gentleman had committed. Mr. Tyler said that the gen¬ 
tleman from Amelia had committed a crime—the crime of differing 
in opinion with the administrators of the Government. This was the 
crime that had incarcerated Mr. Lyon. He asked what prospect have 
we of a change of these measures, which he viewed as the harbingers, 
the forerunners, of monarchy, either limited or absolute. Were we 
not told that they must have more men and a little more money; aug¬ 
ment our standing Army and increase our Navy, and force the con¬ 
struction of the Constitution to warrant alien and sedition bills? 
Mr. Tyler concluded by hoping that the clause would be retained. 
He believed it contained the truth and was very important, and 
thought that the people of Virginia called for some such measure. 

Mr. John Taylor’s resolutions as amended, agreed to by the com¬ 
mittee, and reported to the House, are as follows: 

Resolved, That the General Assembly of Virginia (loth unequivocally express 
a firm resolution to maintain and defend the Constitution of the United States 
and the constitution of this State against every aggression, either foreign or 
domestic, and that they will support the Government of the United States in 
all measures warranted by the former. 

That this assembly most solemnly declares a warm attachment to the union 
of the States, to maintain which it pledges all its powers: and that for this 
end it is their duty to watch over and oppose every infraction of those prin¬ 
ciples which constitute the only basis of that union, because a faithful ob¬ 
servance of them can alone secure its existence and the public happiness. 

That this assembly doth explicitly and peremptorily declare that it views the 
powers of the Federal Government as resulting from the compact, to which the 
States are parties, as limited by the plain sense and intention of the instru¬ 
ment constituting that conmact as no further valid than they are authorized 
by the grants enumerated in that compact; and that in case of a deliberate, 
palpable, and dangerous exercise of other powers not granted by the said com¬ 
pact the States who are parties thereto have the right and are in duty bound 
to interpose for arresting the progress of the evil and for maintaining within 
their respective limits the authorities, rights, and liberties appertaining to 
them. 

That the general assembly doth also express its deep regret that a spirit has 
in sundry instances been manifested by the Federal Government to enlarge 
its powers by forced constructions of the Constitutional Charter which defines 
them, and that indications have appeared of a design to expound certain gen¬ 
eral phrases (which, having been copied from the very limited grant of powers 
in the former Articles of Confederation, were the less liable to be misconstrued) 
so as to destroy the meaning and effect of the particular enumeration which 
necessarily explains and limits the general phrases and so as to consolidate 
tlie States by degrees into one sovereignty, the obvious tendency and inevitable 
result of which would be to transform the present republican system of the 
United States into an absolute, or at best, a mixed monarchy. 

That the general assembly doth particularly protest against the palpable and 
alarming infractions of the Constitution in the two late cases of the “Alien 
and Sedition Acts,” passed at the last session of Congress, the first of which 
exercise a power nowhere delegated to the Federal Government and which by 
uniting legislative and judicial powers to those of executive subverts the gen¬ 
eral principles of free government as well as the particular organization and 
positive provisions of the Federal Constitution, and the other of which acts 
exercises in like manner a power not delegated by the Constitution, but, on the 
contrary, expressly and positively forbidden by one of the amendments thereto, 
a power which more than any other ought to produce universal alarm, because 
it is leveled against that right of freely examining public characters and 
measures and of free communication among the people thereon which has 
ever been justly deemed the only effectual guardian of every other right. 

That this State having by its convention which ratified the Federal Constitu¬ 
tion expressly declared “ that, among other essential rights, the liberty of con¬ 
science and of the press can not be canceled, abridged, restrained, or modified by 
any authority of the United States,” and from its extreme anxiety to guard these 


ALIEN AND SEDITION LAWS. 


133 


rights from every possible attack of sophistry or ambition having, with other 
States, recommended an amendment for that purpose, which amendment was in 
due time annexed to the Constitution, it would mark a reproachful inconsistency 
and criminal degeneracy if an indifference were now shown to tlie most palpable 
violation of one of the rights thus declared and secured and to the establishment 
of a precedent which may be fatal to the other. 

That the good people of this Commonwealth having ever felt, and continuing 
to feel, the most sincere affection to their brethren of the other States, the 
truest anxiety for establishing and perpetuating the union of all, and the most 
scrupulous fidelity to that Constitution, which is the pledge of mutual friend¬ 
ship and the instrument of mutual happiness, the general assembly doth sol¬ 
emnly appeal to the like dispositions of the other States, in confidence that they 
will concur with this Commonwealth in declaring, as it does hereby declare, 
that the acts aforesaid are unconstitutional and that the necessary and proper 
measures will be taken by each for cooperating with this State in maintaining 
unimpaired the authorities, rights, and liberties reserved to the States respec¬ 
tively or to the people. 

That the governor be desired to transmit a copy of the foregoing resolutions 
to the executive authority of each of the other States, with a request that the 
same may be communicated to the legislature thereof. 

And that a copy be furnished to each of the Senators and Representatives 
representing this State in the Congress of the United States. 

The said resolutions being read the second time, a motion was made, 
and the question being put to amend the same by expunging from 
them the fourth clause, in the following words: 

That the general assembly doth also express its deep regret that a spirit has 
in sundry instances been manifested by the Federal Government to enlarge its 
powers by forced constructions of the constitutional charter which defines 
them, and that indications have appeared of a design to expound certain general 
phrases (which, having been copied from the very limited grant of powers in 
the former Articles of Confederation, were the less liable to be misconstrued) 
so as to destroy the meaning and effect of the particular enumeration which 
necessarily explains and limits the general phrases, and so as to consolidate 
the States by degrees into one sovereignty, the obvious tendency and inevitable 
result of which would be to transform the present republican system of the 
United States into an absolute, or at best a mixed, monarchy. 

It passed in the negative—ayes 68, noes 96. 

On motion made by Gen. Lee, seconded by Mr. Bolling, ordered 
that the names of the ayes and noes on the foregoing question be 
inserted in the Journal. 

The names of those who voted in the affirmative are Messrs. Bailey, 
Ware, Anderson, Porterfield, Poage, White, Otey, Logwood, Tate, 
Baker, Breckenridge, McGuire, Moorman, Spencer, Bedford, Harri¬ 
son, Herbert, Magill, Bynum, Reives, John Mathews, Cavendish, 
Royal, Snyder, King, Fisher, Simons, Godwin, Young, Richard Cor¬ 
bin, Thomas Lewis, Turner, Wallace, Pollard, Gregory, Powell, Clap- 
ham, Cowan, Evans, Ingles, James Taylor, Watkins, Upshur, Darby, 
Claughton, Clarke, Divan, Cureton, George K. Taylor, Brooke, Rob¬ 
inson, Ellegood, McCoy, Coonrod, Wilson, Glasscock, Caruthers, 
Andrew Alexander, Davis, Charles Lewis, Blow, Booth, Lee, Bradley, 
Drope, Crockett, Griffin, Andrews—68. 

And the names of those who voted in the negative are Messrs. 
Cabell, Nicholas, Walker, Giles, Fletcher, Bolling, William Allen, 
Colwell, Perrow, John Taylor, Buckner, Tyler, Cheatham, Thomas 
A. Taylor, Daniel, Roberts, Shackelford, Peterson Goodwyn, Pegram, 
Booker, Daingerfield, Webb, Jennings, Horner, Haden, Payne, Greer, 
Benjamin Cooke, Hall, Pleasants, Heath I. Miller, Jones, McKinzie, 
Starke, Thompson, Jackson, Prunty, Selden, Price, Martin, Redd, 
John Allen, Tazewell, Shearman, Joseph Carter, Callis, Meriwether, 


134 


ALIEN AND SEDITION LAWS. 


Chadwell, Francis Eppes, Hudgins, Litchfield, Roebuck, Hill, Nelson, 
Mark Alexander, Segar, Richard H. Corbin, Scott. Butt, James S. 
Mathews, Willis Riddick, Josiah Riddick, Semple, Hurst, Freeman 
Eppes, Dupuy, McKinley, Barbour, Wright, Moseley, Woodson, Pur- 
nall, Johnston, Pope, Rentfro, William Carter, Hadden, Barnes, 
Cockrell, Browning, Gatewood, Dulany, Mercer, Stannard, Nathaniel 
Fox, John Fox, Faulcon, Seward, Mason, Cary, Burnham, TIunger- 
ford, Meek, Shield, Foushee, Newton—9G. 

A motion was then made, and the question being put, to amend the 
said resolutions by striking out from the word “Resolved ” to the end 
of the same, and inserting in lieu thereof the following words: 

That as it is established by the Constitution of the United States that the 
people thereof have a right to assemble peaceably and to petition the Govern¬ 
ment for a redress of grievances, it therefore appears properly to belong to the 
people themselves to petition, when they consider their rights to be invaded by 
any acts of the General Government; and - it should be left to them, if they con¬ 
ceive the laws lately passed by the Congress of the United States, commonly 
called the “alien and sedition laws,” to be unconstitutional, or an invasion of 
their rights, to petition for a repeal of the said laws. 

It also passed in the negative—ayes 60, noes 104. 

On a motion made by Mr. Brooke, seconded by Mr. Griffin, ordered 
that the names of the ayes and noes on the foregoing question be 
inserted in the Journal. 

The names of those who voted in the affirmative are Messrs. Bailey, 
Ware, Anderson. Porterfield, Poage, White, Otey, Logwood, Tate, 
Baker, Breckenridge, McGuire, Moorman, Spencer, Herbert, Magill, 
Bynum, Reives, J. Mathews, Cavendish, Royall, Snyder, King, Fisher, 
Simons, Nelson, Evans, Ingles, James Taylor, Watkins, Upshur, 
Darby, Clarke, Divan, Cureton, George K. Taylor. Brooke, Robinson, 
Ellegood, McCoy,Coonrod,Wilson, Davis, Charles Lewis, Blow, Booth, 
Lee, Bradley, Drope, Crockett, Griffin, Andrews, Godwin, Thomas 
Lewis, Turner, Wallace, Pollard, Powell. Clapham, Cowan—60. 

And the names of those who voted in the negative are Messrs. Cabell, 
Nicholas, Walker, Giles, Fletcher, Bolling, William Allen, Colwell, 
Perrow, John Taylor, Buckner, Bedford, Harrison, Tyler, Cheatham, 
Thomas A. Taylor, Daniel, Roberts, Shackelford, Peterson Goodwyn, 
Pegram, Booker, Daingerfield, Webb, Jennings, Horner, Ha den, 
Payne, Greer, Benjamin Cooke, Hall, Pleasants, Heath I. Miller, 
Jones, McKinzie, Starke, Thompson, Jackson, Prunty, Selden, Price, 
Martin, Redd, John Allen, Tazewell, Young, Richard Corbin, Greg¬ 
ory, Shearman, Joseph Carter, Callis, Meriwether, Chadwell, Francis 
Eppes, Hudgins, Litchfield, Roebuck, Hill, Mark Alexander, Segar, 
Richard H. Corbin, Scott, Butt, James S. Mathews, W. Riddick, 
J. Riddick, Semple, Hurst, Claughton, Freeman Eppes, Dupuy, 
McKinley, Barbour. Wright, Moseley, Woodson, Purnall, Johnston, 
Pope, Rentfro, William Carter, Hadden, Barnes, Glasscock, Caruth- 
ers, Andrew Alexander, Cockrell, Browning, Gatewood, Dulaney, 
Mercer, Stannard, Nathaniel Fox, John Fox, Faulcon, Seward, Mason, 
Cary, Burnham, Hungerford, Meek, Shield, Foushee, Newton—104. 

And then the main question being put, that the House do agree with 
the Committee of the Whole House in the resolution as reported, 

It passed in the affirmative—ayes 100, noes 63. 

On a motion made by Mr. John Taylor, seconded by Mr. Nicholas, 
ordered that the names of the ayes and noes on the foregoing question 
be inserted in the Journal. 


ALIEN AND SEDITION LAWS. 


135 


The names of those who voted in the affirmative are Messrs. Cabell, 
Nicholas, Walker, Giles, Fletcher. Bolling*, William Allen, Colwell, 
Perrow, John Taylor, Buckner, Harrison, Tyler, Cheatham, Thomas 
A. Taylor, Daniel, Roberts, Shackelford, P. Goodwyn, Pegram, 
Booker, Daingerfield, Webb, Jennings, Horner, Haden, Payne, Greer, 
Benjamin Cooke, Flail, Pleasants, Heath I. Miller, Jones, McKinzie, 
Starke, Thompson, Jackson, Prunty, Selden, Price, Martin, Redd, 
John Allen, Tazewell, Young, Richard Corbin, Gregory, Shearman, 
Joseph Carter, Callis, Meriwether. Chadwell, Francis Eppes, Hudgins, 
Litchfield, Roebuck, Hill, Mark Alexander, Segar, Richard H. Corbin, 
Scott, Butt, James S. Mathews, AY. Riddick, J. Riddick, Semple, 
Hurst, Claughton, Freeman Eppes, Dupuy, McKinley, Barbour, 
Wright, Moseley, Woodson, Purnall, Johnston, Pope, Rentfro, Wil¬ 
liam Carter, Hadden, Glasscock, Cockrell, Browning, Gatewood, Du¬ 
laney, Mercer, Stannard, Nathaniel Fox, John Fox, Faulcon, Seward, 
Mason, Cary, Burnham, Hungerford, Meek, Shield. Foushee, New¬ 
ton—100. 

And the names of those who A T oted in the negative are Messrs. Bailey, 
Ware, Anderson, Porterfield, Poage, White, Otey, Logwood, Tate, 
Baker, Breckenridge, McGuire, Moorman, Spencer. Bedford, Herbert, 
Magill, Bynum, Reives, John Mathews, Cavendish. Snyder, King, 
Fisher, Simons, Gpdwyn, Thomas Lewis, Turner, Wallace, Pollard, 
William Clarke, Rovall, Powell, Clapham, Cowan, Nelson, Evans, 
Ingles, James Taylor, Watkins, Upshur, Darby, Devin, Cureton, 
George K. Taylor, Brooke, Robinson, Ellegood, McCoy, Coonrod, 
Wilson, Caruthers, Andrew Alexander, Davis, Charles Lewis, Blow, 
Booth, Lee, Bradley, Drope, Crockett, Griffin, and Andrews—63. 

The House then ordered that the Clerk do carry the said resolutions 
to the Senate for their concurrence. 


In the Senate, 
Monday , December 1798. 

The house, according to the order of the day, resolved itself into a 
committee of the whole house, on the resolutions of the house of dele¬ 
gates, concerning certain acts of the Congress of the United States, 
passed at their last session; and after some time spent therein, Mr. 
Speaker resumed the chair and Mr. Preston reported that the com¬ 
mittee had, according to order, taken the said resolutions under their 
consideration, and had gone through the same, and directed him to 
report the same without any amendment. 

A motion was then made to amend the fifth resolution, by striking 
out the words “two late cases of the alien and,” and on the question 
to agree to the same, 

It passed in the negative—ayes 5. noes 12. 

The ayes and noes were required on the above question. 

Ayes—Burwell Bassett, Francis Peyton, Benjamin Temple, John 
Havmond. John Eyre—5. 

Noes—Creed Taylor, Richard Ivennon, Thomas Royster, Archibald 
Stewart, French Strother, Flugh Holmes, George Carrington, John 
Preston’ John Hoomes, Thomas Newton, Nicholas Cabell, George 
Penn—12. 



136 


ALIEN AND SEDITION LAWS. 


And then the main question being put, that the house do agree to 
the said resolutions, 

It was resolved in the affirmative—ayes 14, noes 3. 

Ordered , That the clerk do acquaint the house of delegates there¬ 
with. 

On the above question the ayes and noes were required. 

Ayes—Creed Taylor, Richard Kennon, Burwell Bassett, Thomas 
Royster, Archibald Stewart, French Strother, Hugh Holmes, George 
Carrington, John Preston, John Hoomes, Benjamin Temple, Thomas 
Newton, Nicholas Cabell, George Penn—14. 

Noes—Francis Peyton, John Haymond, John Eyre—3. 

AN ACT CONCERNING ALIENS. 

[Approved, June 25, 1798.] 

Section 1 . Be it enacted by the Senate and House of Representa¬ 
tives of the United States of America in Congress assembled , That 

it shall be lawful for the President of the United States, at any time 
during the continuance of this act, to order all such aliens as he shall 
judge dangerous to the peace and safety of the United States, or 
shall have reasonable grounds to suspect are concerned in any treason¬ 
able or secret machinations against the Government thereof, to de¬ 
part out of the territory of the United States, within such time as 
shall be expressed in such order; which order shall be served on such 
alien, by delivering him a copy thereof, or leaving the same at his 
usual abode, and returned to the office of the Secretary of State, by 
the marshal, or other person, to whom the same shall be directed. 
And in case any alien, so ordered to depart, shall be found at large 
within the United States, after the time limited in such order for 
his departure, and not having obtained a license from the President 
to reside therein, or having obtained such a license shall not have 
conformed thereto, every such alien shall, on conviction thereof, be 
imprisoned for a term not exceeding three years, and shall never after 
be admitted to become a citizen of the United States: Provided 
always , and be it further enacted , That if any alien so ordered to 
depart shall prove, to the satisfaction of the President, by evidence, 
to be taken before such person or persons as the President shall 
direct, who are for that purpose hereby authorized to administer 
oaths, that no injury or danger to the United States will arise from 
suffering such alien to reside therein, the President may grant a 
license to such alien to remain within the United States for such 
time as he shall judge proper, and at such place as he may designate. 
And the President may also require of such alien to enter into a bond 
to the United States, in such penal sum as he may direct, with one 
or more sufficient sureties, to the satisfaction of the person author¬ 
ized by the President to take the same, conditioned for the good be¬ 
havior of such alien during his residence in the United States, and 
not vioh ting his license, which license the President may revoke 
whenever he shall think proper. 

Sec. 2. And be it further enacted , That it shall be lawful for the 
President of the United States, whenever he may deem it necessary 
for the public safety, to order to be removed out of the territory 
thereof, any alien who may or shall be in prison in pursuance of this 


ALIEN AND SEDITION LAWS. 


137 


act; and to cause to be arrested and sent out of the United States 
such of those aliens as shall have been ordered to depart therefrom, 
and shall not have obtained a license as aforesaid in all cases where, in 
the opinion of the President, the public safety requires a speedy re¬ 
moval. And if any alien so removed or sent out of the United States 
by the President shall voluntarily return thereto, unless by permission 
of the President of the United States, such alien, on conviction 
thereof, shall be imprisoned so long as, in the opinion of the Presi¬ 
dent, the public safety may require. 

Sec. 3. And be it further enacted , That every master or commander 
of any ship or vessel which shall come into any port of the United 
States after the first day of July next, shall immediately on his ar¬ 
rival make report in writing to the collector or other chief officer of 
the customs of such port, of all aliens, if any on board his vessel, 
specifying their names, age, the place of nativity, the country 
from which they shall have come, the nation to which they belong 
and owe allegiance, their occupation and a description of their per¬ 
sons, as far as he shall be informed thereof, and on failure every such 
master and commander shall forfeit and pay three hundred dollars, 
for the payment whereof, on default of such master or commander, 
such vessel shall also be holden, and may by such collector or other 
officer of the customs be detained. And it shall be the duty of such 
collector or other officer of the customs forthwith to transmit to the 
office of the Department of State true copies of all such returns. 

Sec. 4. And be it further enacted , That the circuit and district 
courts of the United States shall, respectively, have cognizance of all 
crimes and offenses against this act. And all marshals and other 
officers of the United States are required to execute all precepts and 
orders of the President of the United States, issued in pursuance or 
by virtue of this act. 

Sec. 5. And be it further enacted , That it shall be lawful for any 
alien who may be ordered to be removed from the United States by 
virtue of this act, to take with him such part of his goods, chattels, 
or other property as he may find convenient ; and all property left in 
the United States by any alien, who may be removed as aforesaid, 
shall be and remain subject to his order and disposal in the same man¬ 
ner as if this act had not been passed. 

Sec. 6. And be it further enacted , That this act shall continue and 
be in force for and during the term of two years from the passing 
thereof. 

AN ACT In addition to the act entitled “An act for the punishment of certain 
crimes against the United States.” 

[Approved, July 3 4, 1798.] 

Section 1. Be it enacted by the Senate and House of Representa¬ 
tives of the United States of America in Congress assembled , That if 
any persons shall unlawfully combine or conspire together with in¬ 
tent to oppose anv measure or measures of the Government of the 
United States, which are or shall be directed by proper authority, or 
to impede the operation of any law of the United States, or to intimi¬ 
date or prevent any person holding a place or office in or under the 
Government of the United States, from undertaking, performing, or 


138 


ALIEN AND SEDITION LAWS. 


executing his trust or duty; and if any person or persons, with in¬ 
tent as aforesaid, shall counsel, advise, or attempt to procure any in¬ 
surrection. riot, unlawful assembly, or combination, whether such con¬ 
spiracy, threatening, counsel, advice, or attempt shall have the pro¬ 
posed effect or not, he or they shall be deemed guilty of a high mis¬ 
demeanor, and on conviction before any court of the United States 
having jurisdiction thereof, shall be punished by a fine not exceeding 
five thousand dollars, and by imprisonment during a term not less 
than six months, nor exceeding five years; and further, at the discre¬ 
tion of the court may be holden to find sureties for his good behavior, 
in such sum and for such time as the said court may direct. 

Sec. 2. And be it further enacted , That if any person shall write, 
print, utter, or publish, or shall cause or procure to be written, 
printed, uttered, or published, or shall knowingly and willingly assist 
or aid in writing, printing, uttering, or publishing any false, scandal¬ 
ous and malicious writing or writings against the Government of the 
United States, or either House of the Congress of the United 
States, or the President of the United States, with intent to de¬ 
fame the said Government or either House of the said Congress, or 
the said President, or to bring them, or either of them, into contempt 
or disrepute; or to excite against them, or either or any of them, the 
hatred of the good people of the United States, or to stir up sedition 
within the United States; or to excite any unlawful combinations 
therein for opposing or resisting any law of the United States, or 
any act of the President of the United States, done in pursuance of 
any such law, or of the powers in him vested by the Constitution of 
the United States; or to resist, oppose, or defeat any such law or act; 
or to aid, encourage, or abet any hostile designs of any foreign nation 
against the United States, their people or Government, then such per¬ 
son, being thereof convicted before any court of the United States 
having jurisdiction thereof, shall be punished by a fine not exceeding 
two thousand dollars, and by imprisonment not exceeding two years. 

Sec. 3. And be it further enacted and declared , That if any person 
shall be prosecuted under this act for the writing or publishing any 
libel aforesaid, it shall be lawful for the defendant, upon the trial 
of the cause, to give in evidence in his defense, the truth of the matter 
contained in the publication charged as a libel. And the jury who 
shall try the cause shall have a right to determine the law and the 
fact, under the direction of the court, as in other cases. 

Sec. 4. And be it further enacted , That this act shall continue and 
be in force until the third day of March, eighteen hundred and one, 
and no longer: Provided* That the expiration of the act shall not 
prevent or defeat a prosecution and punishment of any offense against 
the law during the time it shall be in force. 

The Resolutions of Virginia and Kentucky. 

(Penned by Madison and Jefferson, in relation to the alien and sedition laws.) 

PREFACE. 

The administration of Mr. John Adams was a dark day for the 
Republic. Then, alien and sedition acts were let loose upon us; the 
purity of the Constitution itself was violated by the madness of 


ALIEN AND SEDITION LAWS. 


139 


Party; and those rights which had been respectively reserved to the 
States and to the people were exposed to the most fearful jeopardy 
by the usurpations of the Federal Government. 

But. the friends of the Constitution did not “ despair of the Re¬ 
public.Though the liberty of speech and of the press were invaded; 
though the power and patronage of the Government were exerted 
to intimidate or seduce the people; the Republicans did not abandon 
the cause of their country. Their resistance continued with the 
crisis; the form of it only was varied. While Mr. Jefferson remained 
in the Senate of the United States, and Mr. Gallatin in the House of 
Representatives, most of their most able and active friends in some 
of the States retired from the walks of the General Government 
and retreated to the State legislatures, in which great citadels of the 
public liberty they proposed to reassert the true principles of the 
Government. The Republicans succeeded, and the Constitution was 
saved. 

Among the most memorable productions of those times were the 
Resolutions and Reports, which were adopted by the Legislatures of 
Kentucky and Virginia. These were penned by Jefferson and Madi¬ 
son. To Mr. Madison is due the honor of having drafted the Virginia 
resolutions of the 21st December, 1798; and that masterly vindication 
of them, which was adopted by the Legislature of Virginia during 
the session of 1799-1800; a paper which is familiarly known by the 
name of “ Madison’s Report,” and which deserves to last as long as 
the Constitution itself. 

The resolutions of Kentucky were submitted to the legislature of 
that State by Mr. John Breckenridge and adopted by them on the 
10th November. 1798. They had the honor of being penned by the 
author of the Declaration of American Independence. 

Both these esteemed productions are scarce and out of print. 
They are frequently asked for. They are again wanting, to reestab¬ 
lish the landmarks of the Constitution, and to stay that flood of 
encroachment which threatens to sweep our country. The rights of 
the States and of the people are again assailed in an alarming man¬ 
ner. Doctrines are preached in high places which are directly at 
war with the principles of our Government. The centripetal power 
is assuming a new and fearful energy. Under the authority of great 
names great errors are maintained. Is it not time, then, for the 
friends of truth to rally together and to reassert her principles? 
Where can we find these principles more clearly stated or the argu¬ 
ments in their defense more powerfully developed than in the cele¬ 
brated productions which the publisher of this pamphlet now lays 
before his readers? 

Richmond, Va., Febmary , 1826. 

In the House of Delegates, 

Monday , January 20. 1800. 

Resolved , That five thousand copies of the report of the select com¬ 
mittee, to whom were referred the answers of several States upon 
the resolutions of the last legislature, the said answers [and also the 
instructions to the Senators of this State in the Congress of the 
United States^ together with the names of those who voted on each 


140 


ALIEN AND SEDITION LAWS. 


of those subjects 1 ] be printed without delay, and that the Executive 
be requested, as soon as may be, to distribute them equally in such 
manner as they shall think best among the good people of this 
Commonwealth. 

Attest * 

William Wirt, C. H. D. 

H. Brooke, 0. S. 

Communications, etc. 

STATE OF DELAWARE. 

In the House of Representatives, 

February 1, 1799. 

Resolved by the Senate and House of Representatives of the State 
of Delaware , in general assembly met , That they consider the resolu¬ 
tions from the State of Virginia as a very unjustifiable interference 
with the General Government and constituted authorities of the 
United States, and of dangerous tendency, and therefore not a fit 
subject for the further consideration of the general assembly. 

Isaac Davis, 

Speaker of Senate. 

Stephen Lewis, 

Speaker of the House of Representatives. 

Test: 

John Fisher, C. S. 

John Caldwell, G. II. R. 

Resolved , That the above resolution be signed by the speaker of 
senate and by the speaker of the house of representatives, and that 
the governor of this State be requested to forward the same to the 
governor of the State of Virginia. 

John Fisher, C. S. 

John Caldwell, C. II. R. 

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS. 

[In general assembly, February, A. D. 1799.] 

Certain resolutions of the Legislature of Virginia, passed on the 
21st day of December last, being communicated to this assembly, 

1. Resolved , That in the opinion of this legislature, the second 
section of the third article of the Constitution of the United States, 
in these words, to wit, the judicial power shall extend to all cases 
arising under the laws of the United States, vests in the Federal 
courts exclusively, and in the Supreme Court of the United States 
ultimately, the authority of deciding on the constitutionality of any 
act or law of the Congress of the United States. 

2. Resolved , That for any State legislature to assume that authority 
would be— 

First. Blending together legislative and judicial powers. 

Second. Hazarding an interruption of the peace of the States by 
civil discord, in case of a diversity of opinions among the State 


1 The part contained in brackets is not embraced in the present publication. 



ALIEN AND SEDITION LAWS. 


141 


legislatures; each State having, in that case, no resort for vindicating 
its own opinion but to the strength of its own arm. 

Third. Submitting most important questions of law to less com¬ 
petent tribunals; and 

Fourth. An infraction of the Constitution of the United States, 
expressed in plain terms. 

3. Resolved , That although for the above reasons this legislature, 
in their public capacity, do not feel themselves authorized to consider 
and decide on the constitutionality of the sedition and alien laws (so 
called), yet they are called upon by the exigency of this occasion to 
declare that, in their private opinions, these laws are within the 
powers delegated to Congress and promotive of the welfare of the 
United States. 

4. Resolved , That the governor communicate these resolutions to 
the supreme executive of the State of Virginia, and at the same time 
express to him that this legislature can not contemplate, without 
extreme concern and regret, the many evil and fatal consequences 
which may flow from the very unwarrantable resolutions aforesaid 
of the Legislature of Virginia, passed on the 21st day of December 
last. 

A true copy. 

Samuel Eddy, Secretary. 

COMMONWEALTH OF MASSACHUSETTS. 

[In senate, Feb. 9, 1799.] 

The Legislature of Massachusetts having taken into serious con 
sicleration the resolutions of the State of Virginia passed the 21st 
day of December last and communicated by his excellency the gov¬ 
ernor relative to certain supposed infractions of the Constitution of 
the United States by the Government thereof, and being convinced 
that the Federal Constitution is calculated to promote the happiness, 
prosperity, and safety of the people of these United States and to 
maintain that union of the several States so essential to the welfare 
of the whole, and being bound by solemn oath to support and defend 
that Constitution, feel it unnecessary to make any professions of their 
attachment to it or of their firm determination to support it against 
every aggression, foreign or domestic. 

But they deem it their duty solemnly to declare that while they 
hold sacred the principle that the consent of the people is the only 
pure source of just and legitimate power, they can not admit the right 
of the State legislatures to denounce the administration of that Gov¬ 
ernment to which the people themselves by a solemn compact have 
exclusively committed their national concerns; that although a liberal 
and enlightened vigilance among the people is always to be cherished, 
yet an unreasonable jealousy of the men of their choice and a recur¬ 
rence to measures of extremity upon groundless or trivial pretexts 
have a strong tendency to destroy all rational liberty at home and to 
deprive the United States of the most essential advantages in their 
relations abroad; that this legislature are persuaded that the decision 
(A* all cases in law and equity arising under the Constitution of the 
LTnited States and the construction of all laws made in pursuance 
thereof are exclusively vested by the people in the judicial courts of 
the United States. 


142 


ALIEN AND SEDITION LAWS. 


That the people in that solemn compact which is declared to be the 
supreme law of the land have not constituted the State legislatures 
the judges of the acts or measures of the Federal Government, but 
have confided to them the power of proposing such amendments of 
the Constitution as shall appear to them necessary to the interests or 
conformable to the wishes of the people whom they represent. 

That by this construction of the Constitution an amicable and dis¬ 
passionate remedy is pointed out for any evil which experience may 
prove to exist and the peace and prosperity of the United States may 
be preserved without interruption. 

But should the respectable State of Virginia persist in the assump¬ 
tion of the right to declare the acts of the National Government 
unconstitutional, and should she oppose successfully her force and 
will to those of the Nation, the Constitution would be reduced to a 
mere cipher, to the form and pageantry of authority without the 
energy of power. Every act of the Federal Government which 
thwarted the views or checked the ambitious projects of a particular 
State or of its leading and influential members would be the object of 
opposition and of remonstrance, while the people, convulsed and con¬ 
fused by the conflict between two hostile jurisdictions, enjoying the 
protection of neither, would be wearied into a submission to some 
bold leader who would establish himself on the ruins of both. 

The Legislature of Massachusetts, although they do not themselves 
claim the right nor admit the authority of any of the State govern¬ 
ments to decide upon the constitutionality of the acts of the Federal 
Government, still, lest their silence should be construed into disappro¬ 
bation, or at best into a doubt of the constitutionality of the acts 
referred to by the State of Virginia, and as the General Assembly 
of Virginia has called for an expression of their sentiments, do 
explicitly declare that they consider the acts of Congress commonly 
called “ the alien and sedition acts ” not only constitutional but expe¬ 
dient and necessary; that the former act respects a description of 
persons whose rights were not particularly contemplated in the Con¬ 
stitution of the United States, who are entitled only to a temporary 
protection while they yield a temporary allegiance, a protection which 
ought to be withdrawn whenever they become “ dangerous to the 
public safety ” or are found guilty of “ treasonable machinations ” 
against the Government; that Congress, having been especially 
intrusted by the people with the general defense of the Nation, had 
not only the right but were bound to protect it against internal as 
well as external foes. 

That the United States at the time of passing the act concerning 
aliens were threatened with actual invasion, had been driven by the 
unjust and ambitious conduct of the French Government into warlike 
preparations, expensive and burdensome, and had then within the 
bosom of the country thousands of aliens who, we doubt not, were 
ready to cooperate in any external attack. 

It can not be seriously believed that the United States should have 
waited till the poignard had in fact been plunged. The removal of 
aliens is the usual preliminary of hostility, and is justified by the 
invariable usages of nations. Actual hostility had unhappily" long- 
been experienced, and a formal declaration of it the Government had 
reason daily to expect. The law, therefore, was just and salutary, 
and no officer could with so much propriety be entrusted with the 


ALIEN AND SEDITION LAWS. 143 

execution of it as the one in whom the Constitution has reposed the 
executive power of the United States. 

The sedition act, so called, is, in the opinion of this legislature, 
equally defensible. The General Assembly of Virginia, in their 
resolve under consideration, observe that when that State, by its 
convention, ratified the Federal Constitution it expressly declared, 
u That, among other essential rights, the liberty of conscience and of 
the press can not be canceled, abridged, restrained, or modified by 
any authority of the United States,’' and from its extreme anxiety 
to guard these rights from every possible attack of sophistry or am¬ 
bition, with other States, recommended an amendment for that pur¬ 
pose; which amendment was, in due time, annexed to the Constitu¬ 
tion; but they did not surely expect that the proceedings of their 
State convention were to explain the amendment adopted by the 
Union. The words of that amendment on this subject are, “Con¬ 
gress shall make no law abridging the freedom of speech or of the 
press.” 

The act complained of is no abridgment of the freedom of either. 
The genuine liberty of speech and the press is the liberty to utter and 
publish the truth; but the constitutional right of the citizen to utter 
and publish the truth is not to be confounded with the licentiousness 
in speaking and writing that is only employed in propagating false¬ 
hood and slander. This freedom of the press has been explicitly 
secured by most, if not all, the State constitutions; and of this pro¬ 
vision there has been generally but one construction among enlight¬ 
ened men; that it is a security for the rational use and not the abuse 
of the press; of which the courts of law, the juries, and people will 
judge; this right is not infringed, but confirmed and established by 
the late act of Congress. 

By the Constitution the legislative, executive, and judicial depart¬ 
ments of Government are ordained and established; and general 
enumerated powers vested in them respectively, including those which 
are prohibited to the several States. Certain powers are granted in 
general terms by the people to their General Government for the 
purposes of their safety and protection. That Government is not 
only empowered, but it is made their duty to repel invasions and 
suppress insurrections; to guarantee to the several States a repub¬ 
lican form of government; to protect each State against invasion, 
and, when applied to, against domestic violence; to hear and decide 
all cases in law and equity arising under the Constitution, and under 
any treaty or law made in pursuance thereof; and all cases of ad¬ 
miralty and maritime jurisdiction, and relating to the law of nations. 
Whenever, therefore, it becomes necessary to effect any of the objects 
designated it is perfectly consonant to all just rules of construction 
to infer that the usual means and powers necessary to the attainment 
of that object are also granted. But the Constitution has left no 
occasion to resort to implication for these powers; it has made an 
express grant of them in the eighth section of the first article, which 
ordains, “That Congress shall have power to make all laws which 
shall be necessary and proper for carrying into execution the fore¬ 
going powers and all other powers vested by the Constitution in the 
Government of the United States or in any department or officer 
thereof.” 


144 


ALIEN AND SEDITION LAWS. 


This Constitution has established a Supreme Court of the United 
States, but has made no provision for its protection, even against 
such improper conduct in its presence as might disturb its proceed¬ 
ings, unless expressed in the section before recited. But as no statute 
has been passed on this subject, this protection is, and has been for 
nine years past, uniformly found in the application of the principles 
and usages of the common law. The same protection may unques¬ 
tionably be afforded by a statute passed in virtue of the before- 
mentioned section, as necessary and proper, for carrying into execu¬ 
tion the powers vested in that department. A construction of the 
different parts of the Constitution, perfectly just and fair, will, on 
analogous principles, extend protection and security against the 
offenses in question to the other departments of Government in dis¬ 
charge of their respective trusts. 

The President of the United States is bound by his oath, “to pre¬ 
serve, protect, and defend the Constitution,” and it is expressly made 
his duty “to take care that the Uavs be faithfully executed;” but this 
would be impracticable by any created being, if there could be no 
legal restraint of those scandalous misrepresentations of his measures 
and motives, which directly tend to rob him of the public confidence. 
And equally impotent would be every other public officer if thus left 
to the mercy of the seditious. 

It is holden to be a truth most clear that the important trusts be¬ 
fore enumerated can not be discharged by the Government to which 
they are committed without the power to restrain or punish seditious 
practices and unlawful combinations against itself, and to protect 
the officers thereof from abusive misrepresentations. Had the Con¬ 
stitution withheld this power it would have made the Government 
responsible for the effects without any control over the causes which 
naturally produce them and would have essentially failed of answer¬ 
ing the great ends for which the people of the United States declare 
in the first clause of that instrument that they establish the same, 
viz, “To form a more perfect union, establish justice, insure domestic 
tranquillity, provide for the common defense, promote the general 
welfare, and secure the blessings of liberty to ourselves and posterity.” 

Seditious practices and unlawful combinations against the Federal 
Government, or any officer thereof, in the performance of his duty, 
as well as licentiousness of speech and of the press, were punishable 
on the principles of common law in the courts of the United States 
before the act in question was passed. This act, then, is an ameliora¬ 
tion of that law in favor of the partv accused, as it mitigates the 
punishment which that authorizes and admits of any investigation 
of public men and measures which is regulated by truth. It is not 
intended to protect men in office, only as they are agents of the people. 
Its object is to afford legal security to public offices and trusts created 
for the safety and happiness of the people, and therefore the security 
derived from it is for the benefit of the people and is their right. 

This construction of the Constitution and of the existing law of 
the land, as well as the act complained of, the Legislature of Massa¬ 
chusetts most deliberately and firmly believe results from a just and 
full view of the several parts of that Constitution; and they consider 
that act to be wise and necessary, as an audacious and unprincipled 
spirit of falsehood and abuse had been too long unremittingly exerted 


ALIEN AND SEDITION LAWS. 


145 


for the purpose of perverting public opinion, and threatened to 
undermine and destroy the whole fabric of the Government. 

The legislature further declare, that in the foregoing sentiments 
they have expressed the general opinion of their constituents, who 
have not only acquiesced without complaint in those particular meas¬ 
ures of the Federal Government, but have given their explicit appro¬ 
bation by reelecting those men who voted for the adoption of them. 
Nor is it apprehended that the citizens of this State will be accused 
of supineness or of an indifference to their constitutional rights, for 
while on the one hand they regard with due vigilance the conduct of 
the Government, on the other their freedom, safety, and happiness 
require that they should defend that Government and its constitu¬ 
tional measures against the open or insidious attacks of any foe, 
whether foreign or domestic. 

And lastly, that the Legislature of Massachusetts feel a strong 
conviction that the several United States are connected by a common 
interest, which ought to render their union indissoluble, and that this 
State will always cooperate with its confederate States in rendering 
that Union productive of mutual security, freedom, and happiness. 

Sent down for concurrence. 

Samuel Philips, President. 


Read and concurred. 


A true copy. 
Attest: 


In the House of Representatives, 

February 13 , 1799. 

Edward II. Robbins, Speaker. 


John Avery, Secretary. 


STATE OF NEW YORK. 

[In senate, Mar. 5, 1799.1 

Whereas the people of the United States have established for 
themselves a free and independent National Government; and 
whereas it is essential to the existence of every Government that it 
have authority to defend and preserve its constitutional powers in¬ 
violate, inasmuch as every infringement thereof tends to its subver¬ 
sion; and whereas the judicial power extends, expressly to all cases 
of law and equity arising under the Constitution and the laws of the 
United States, whereby the interference of the legislatures of the 
particular States in those cases is manifestly excluded; and whereas 
our peace, prosperity, and happiness eminently depend on the preser¬ 
vation of the Union, in order to which a reasonable confidence in the 
constituted authorities and chosen representatives of the people is 
indispensable; and whereas every measure calculated to weaken 
that confidence has a tendency to destroy the usefulness of our public 
functionaries and to excite jealousies equally hostile to rational lib¬ 
erty and the principles of a good republican Government; and 
whereas the Senate not perceiving that the rights of the particular 
States have been violated, nor any unconstitutional powers assumed 
by the General Government, can not forbear to express the anxiety 
and regret with which they observe the inflammatory and pernicious 

52068—S. Doc. 873, 62-2-10 


146 


ALIEN AND SEDITION LAWS. 


sentiments and doctrines which are contained in the resolutions of 
the Legislatures of Virginia and Kentucky, sentiments and doctrines 
no less repugnant to the Constitution of the United States and the 
principles of their Union than destructive to the Federal Government 
and unjust to those whom the people have elected to administer it: 
Wherefore, 

Resolved , That while the Senate feel themselves constrained to bear 
unequivocal testimony against such sentiments and doctrines, they 
deem it a duty no less indispensable explicitly to declare their incom¬ 
petency, as a branch of the legislature of this State, to supervise the 
acts of the General Government. 

Resolved , That his excellency the governor be, and he is hereby, 
requested to transmit a copy of the foregoing resolution to the execu¬ 
tives of the States of Virginia and Kentucky, to the end that the same 
may be communicated to the legislatures thereof. 

A true copy. 

Abm. B. Baucker, Clerk. 

STATE OF CONNECTICUT. 

At a General Assembly of the State of Connecticut, holden at Hart¬ 
ford, in the said State, on the second Thursday of May, A. D. 1799, 
his excellency the governor having communicated to this assembly 
sundry resolutions of the Legislature of Virginia, adopted in Decem¬ 
ber, 1798, which relate to the measures of the General Government, 
and the said resolutions having been considered, it is 

Resolved , That this assembly views with deep regret, and explicitly 
disavows the principles contained in the aforesaid resolutions, and 
particularly the opposition to the alien and sedition acts, acts which 
the Constitution authorized; which the exigency of the country ren¬ 
dered necessary; which the constituted authorities have enacted; and 
which merit the entire approbation of this assembly. They therefore 
decidedly refuse to concur with the Legislature of Virginia in promot¬ 
ing any of the objects attempted in the aforesaid resolutions. 

And it is further resolved , That his excellency the governor be re¬ 
quested to transmit a copy of the foregoing resolution to the governor 
of Virginia, that it may be communicated to the legislature of that 
State. 

Passed in the house of representatives unanimously. 

Attest. « 

John C. Smith, Clerk. 

Concurred unanimously in the upper house. 

Teste. 

Samuel Wyllys, Secretary. 

STATE OF NEW HAMPSHIRE. 

|Tn the house of representatives, June 14, 1799.] 

The committee to take into consideration the resolutions of the 
General Assembly of Virginia, dated December 21, 1798; also certain 
resolutions of the Legislature of Kentucky of the 10th November, 
1798, report as follows: 

The Legislature of New Hampshire having taken into considera¬ 
tion certain resolutions of the General Assembly of Virginia, dated 


ALIEN AND SEDITION LAWS. 


147 


December 21,1798; also certain resolutions of the Legislature of Ken¬ 
tucky of the 10th of November, 1798. 

Resolved , That the Legislature of New Hampshire unequivocally 
express a firm resolution to maintain and defend the Constitution of 
the United States and the constitution of this State against every 
aggression, either foreign or domestic, and that they will support the 
Government of the United States in all measures warranted by the 
former. 

That the State legislatures are not the proper tribunals to deter¬ 
mine the constitutionality of the laws of the General Government— 
that the duty of such decision is properly and exclusively confided to 
the judicial department. 

That if the Legislature of New Hampshire for mere speculative 
purposes were to express an opinion on the acts of the General Gov¬ 
ernment, commonly called “ the alien and sedition bills,” that opinion 
would unreservedly be that those acts are constitutional and, in the 
present critical situation of our country, highly expedient. 

That the constitutionality and expediency of the acts aforesaid 
have been very ably advocated and clearly demonstrated by many 
citizens of the United States, more especially by the minority of the 
General Assembly of Virginia. The Legislature of New Hampshire 
therefore deem it unnecessary, by any train of arguments, to attempt 
further illustration of the propositions, the truth of which it is con¬ 
fidently believed at this day is very generally seen and acknowledged. 

Which report, being read and considered, was unanimously re¬ 
ceived and accepted, 137 members being present. 

Sent up for concurrence. 

John Prentice, Speaker. 


In senate, the same day, read and concurred unanimously. 

Amos Shepard, President. 


Approved, June 15, 1799. 

A true copy. 

Attest: 


J. T. Gilman, Governor. 


Joseph Pearson, Secretary. 


STATE OF VERMONT. 


fin the house of representatives, Oct. 30, A. D. 1799.] 

The house proceeded to take under their consideration the resolu¬ 
tions of the General Assembly of Virginia relative to certain measures 
of the General Government transmitted to the legislature of this State 
for their consideration: Whereupon, 

Resolved, That the General Assembly of the State of Vermont do 
highly disapprove of the resolutions of the General Assembly of Vir¬ 
ginians being unconstitutional in their nature and dangerous in their 
tendency. It belongs not to State legislatures to decide on the consti¬ 
tutionality of laws made by the General Government, this power being 
exclusively vested in the judiciary courts of the Union. That his 
excellency the governor be requested to transmit a copy of this resolu¬ 
tion to the executive of Virginia, to be communicated to the general 


148 


ALIEN AND SEDITION LAWS. 


assembly of that State; and that the same be sent to the governor 
and council for their concurrence. 

Samuel C. Crafts, Clerk. 

In council, October 30, 1799. 

Read and concurred unanimously. 

Richard Whitney, Secretary. 

VIRGINIA-HOUSE OF DELEGATES. 

Report of the committee to whom were referred the communications 

of various States relative to the resolutions of the last general 

assembly of this State concerning the alien and sedition laws. 

Whatever room might be found in the proceedings of some of the 
States who have disapproved of the resolutions of the general assem¬ 
bly of this Commonwealth, passed on the 21st day of December, 1798, 
for painful remarks on the spirit and manner of those proceedings, 
it appears to the committee most consistent with the duty as well as 
dignity of the general assembly to hasten an oblivion of every cir¬ 
cumstance which might be construed into a diminution of mutual 
respect, confidence, and affection among the members of the Union. 

The committee have deemed it a more useful task to revise with a 
critical eye the resolutions which have met with this disapprobation; 
to examine fully the several objections and arguments which have 
appeared against them; and to inquire whether there be any errors of 
fact, of principle, or of reasoning which the candor of the general 
assembly ought to acknowledge and correct. 

The first of the resolutions is in the words following: 

Resolved , That the General Assembly of Virginia doth unequivocally express a 
firm resolution to maintain and defend the Constitution of the United States and 
the constitution of this State against every aggression, either foreign or domestic, 
and that they will support the Government of the United States in all measures 
warranted by the former. 

No unfavorable comment can have been made on the sentiments here 
expressed. To maintain and defend the Constitution of the United 
States and of their own State against every aggression, both foreign 
and domestic, and to support the Government of the United States in 
all measures warranted by their Constitution, are duties which the 
general assembly ought always to feel, and to which, on such an 
occasion, it was evidently proper to express their sincere and firm 
adherence. 

In their next resolution— 

The general assembly most solemnly declares a warm attachment to the 
Union of the States, to maintain which it pledges all its powers; and that for 
this end it is their duty to watch over and oppose every infraction of those prin¬ 
ciples which constitute the only basis of that Union, because a faithful observ¬ 
ance of them can alone secure its existence and the public happiness. 

The observation just made is equally applicable to this solemn dec¬ 
laration of warm attachment to the Union and this solemn pledge to 
maintain it; nor can any question arise among enlightened friends of 
the Union as to the duty of watching over and opposing every infrac¬ 
tion of those principles which constitute its basis, and a faithful 
observance of which can alone secure its existence and the public 
happiness thereon depending. 


ALIEN AND SEDITION LAWS. 


149 


The third resolution is in the words following: 

That this assembly doth explicitly and peremptorily declare that it views the 
powers of the Federal Government, as resulting from the compact to which the 
States are parties, as limited by the plain sense and intention of the instrument 
constituting that compact; as no further valid than they are authorized by the 
grants enumerated in that compact; and that in case of a deliberate, palpable, 
and dangerous exercise of other powers not granted by the said compact the 
States who are parties thereto have the right, and are in duty bound, to inter¬ 
pose for arresting the progress of the evil and for maintaining within their 
respective limits the authorities, rights, and liberties appertaining to them. 

On this resolution the committee have bestowed all the attention 
which its importance merits. They have scanned it not merely with 
a strict but with a severe eye, and they feel confidence in pronouncing 
that in its just and fair construction it is unexceptionably true in its 
several positions, as well as constitutional and conclusive in its 
inferences. 

The resolution declares, first, that u it views the powers of the Fed¬ 
eral Government as resulting from the compact to which the States 
are parties”; in other words, that the Federal powers are derived 
from the Constitution, and that the Constitution is a compact to 
which the States are parties. 

Clear as the position must seem, that the Federal powers are de¬ 
rived from the Constitution, and from that alone, the committee 
are not unapprised of a late doctrine, which opens another source of 
Federal powers, not less extensive and important than it is new and 
unexpected. The examination of this doctrine will be most con¬ 
veniently connected with a review of a succeeding resolution. The 
committee satisfy themselves with briefly remarking, that in all 
the contemporary discussions and comments which the Constitution 
underwent it was constantly justified and recommended on the 
ground that the powers not given to the Government were withheld 
from it, and that if any doubt could have existed on this subject, 
under the original text of the Constitution, it is removed, as far as 
words could remove it. by the twelfth amendment, now a part of the 
Constitution, which expressly declares “ that the powers not dele¬ 
gated to the United States by the Constitution, nor prohibited by it 
to the States, are reserved to the States, respectively, or to the people.” 

The other position involved in this branch of the resolution, 
namely, “ that the States are parties to the Constitution or compact,” 
is, in the judgment of the committee, equally free from objection. It 
is" indeed true that the term “ States ” is sometimes used in a vague 
sense and sometimes in different senses, according to the subject to 
which it is applied. Thus, it sometimes means the separate sections 
of territory occupied by the political societies within each; sometimes 
the particular governments, established by those societies; sometimes 
those societies as organized into those particular governments; and, 
lastly, it means the people composing those political societies in 
their highest sovereign capacity. Although it might be wished that 
the perfection of language admitted less diversity in the significa¬ 
tion of the same words, yet little inconveniencv is produced by it, 
where the true sense can be collected with certainty from the different 
applications. In the present instance, whatever different construc¬ 
tions of the term “ States ” in the resolution may have been enter¬ 
tained, all will at least concur in that last mentioned, because in that 
sense the Constitution was submitted to the “ States,” in that sense 


150 


ALIEN AND SEDITION LAWS. 


the u States ” ratified it, and in that sense of the term “ States ” they 
are consequently parties to the compact from which the powers of the 
Federal Government result. 

The next position is that the general assembly views the powers 
of the Federal Government “ as limited by the plain sense and inten¬ 
tion of the instrument constituting that compact,” and “ as no further 
valid than they are authorized by the grants therein enumerated.” 
It does not seem possible that any just objection can lie against 
either of these clauses. The first amounts merely to a declaration that 
the compact ought to have the interpretation plainly intended by the 
parties to it; the other to a declaration that it ought to have the 
execution and effect intended by them. If the powers granted be 
valid it is solely because they are granted; and if the granted powers 
are valid, because granted, all other powers not granted must not 
be valid. 

The resolution, having taken this view of the Federal compact, 
proceeds to infer “ that in case of a deliberate, palpable, and dan¬ 
gerous exercise of other powers, not granted by the said compact, 
the States, who are parties thereto, have the right and are in duty 
bound to interpose for arresting the progress of the evil, and for 
maintaining, within their respective limits, the authorities, right, 
and liberties appertaining to them.” 

It appears to your committee to be a plain principle, founded in 
common sense, illustrated by common practice, and essential to the 
nature of compacts, that, where resort can be had to no tribunal, 
superior to the authority of the parties, the parties themselves must 
be the rightful judges in the last resort, whether the bargain made 
has been pursued or violated. The Constitution of the United States 
was formed by the sanction of the States, given by each in its 
sovereign capacity. It adds to the stability and dignity, as well as 
to the authority of the Constitution, that it rests on this legitimate 
and solid foundation. The States, then, being the parties to the 
constitutional compact, and in their sovereign capacity, its follows, 
of necessity, that there can be no tribunal above their authority, to 
decide in the last resort, whether the compact made by them be vio¬ 
lated; and, consequently, that, as the parties to it, they must them¬ 
selves decide, in the last resort, such questions as may be of sufficient 
magnitude to require their interposition. 

It does not follow, however, that because the States, as sovereign 
parties to their constitutional compact, must ultimately decide 
whether it has been violated, that such a decision ought to be inter¬ 
posed, either in a hasty manner or on doubtful and inferior occasions. 
Even in the case of ordinary conventions between different nations, 
where, by the strict rule of interpretation, a breach of a part may be 
deemed a breach of the whole, every part being deemed a condition 
of every other part, and of the whole, it is always laid down that the 
breach must be both willful and material to justify an application of 
the rule. But in the case of an intimate and constitutional Union, 
like that of the United States^ it is evident that the interposition of 
the parties, in their sovereign capacity, can be called for by occasions 
only deeply and essentially affecting the vital principles of their 
political system. 

The resolution has accordingly guarded against any misapprehen¬ 
sion of its object by expressly requiring for such an interposition 


ALIEN AND SEDITION LAWS. 


151 


“ the case of a deliberate, palpable, and dangerous breach of the 
Constitution by the exercise of powers not granted by it.” It must 
be a case not of a light and transient nature but of a nature danger¬ 
ous to the great purposes for which the Constitution was established. 
It must be a case, moreover, not obscure or doubtful in its construc¬ 
tion, but plain and palpable. Lastly, it must be a case not resulting 
from a partial consideration or hasty determination, but a case 
stamped with a final consideration and deliberate adherence. It is 
not necessary, because the resolution does not require that the ques¬ 
tion should be discussed how far the exercise of any particular power 
ungranted by the Constitution would justify the interposition of the 
parties to it. As cases might easily be stated which none would con¬ 
tend ought to fall within that description, cases, on the other hand, 
might with equal ease be stated so flagrant and so fatal as to unite 
every opinion in placing them within the description. 

But the resolution has done more than guard against misconstruc¬ 
tion by expressly referring to cases of a deliberate, palpable, and 
dangerous nature. It specifies the object of the interposition which 
it contemplates to be solely that of arresting the progress of the evil 
of usurpation and of maintaining the authorities, rights, and liberties 
appertaining to the States as parties to the Constitution. 

From this view of the resolution it would seem inconceivable that 
it can incur any just disapprobation from those who, laying aside 
all momentary impressions and recollecting the genuine source and 
object of the Federal Constitution, shall candidly and accurately 
interpret the meaning of the general assembly. If the deliberate 
exercise of dangerous powers, palpably withheld by the Constitution, 
could not justify the parties to it in interposing even so far as to 
arrest the progress of the evil and thereby to preserve the Constitu¬ 
tion itself, as well as to provide for the safety of the parties to it, 
there would be an end to all relief from usurped power and a direct 
subversion of the rights specified or recognized under all the State 
constitutions, as well as a plain denial of the fundamental principle 
on which our independence itself was declared. 

But it is objected that the judicial authority is to be regarded as 
the sole expositor of the Constitution in the last resort, and it may 
be asked for what reason the declaration by the general assembly, 
supposing it to be theoretically true, could be required at the present 
day and in so solemn a manner. 

On this objection it might be observed, first, that there may be 
instances of usurped power which the forms of the Constitution would 
never draw within the control of the judicial department; secondly, 
that if the decision of the judiciary be raised above the authority of 
the sovereign parties to the Constitution the decisions of the other 
departments, not carried by the forms of the Constitution before the 
judiciary, must be equally authoritative and final with the decisions 
of that "department. But the proper answer to the objection is that 
the resolution of the general assembly relates to those great and 
extraordinary cases in which all the forms of the Constitution may 
prove ineffectual against infractions dangerous to the essential rights 
of the parties to it. The resolution supposes that dangerous powers, 
not delegated, may not be usurped and executed by the other depart¬ 
ments but that the judicial department also may exercise or sanction 
dangerous powers beyond the grant of the Constitution, and conse- 


152 


ALIEN AND SEDITION LAWS. 


quently that the ultimate right of the parties to the Constitution to 
judge whether the compact has been dangerously violated must extend 
to violations by one delegated authority as well as by another, by 
the judiciary as well as by the executive or the legislature. 

However true, therefore, it may be that the judicial department is 
in all questions submitted to it by the forms of the Constitution to 
decide in the last resort, this resort must necessarily be deemed the 
last in relation to the authorities of the other departments of the 
Government, not in relation to the rights of the parties to the con¬ 
stitutional compact from which the judicial as well as the other 
departments hold their delegated trusts. On any other hypothesis 
the delegation of judicial power would annul the authority delegating 
it, and the concurrence of this department with the others in usurped 
powers might subvert forever and beyond the possible reach of any 
rightful remedy the very Constitution which all were instituted to 
preserve. 

The truth declared in the resolution being established, the expedi¬ 
ency of making the declaration at the present day may safely be left 
to the temperate consideration and candid judgment of the American 
public. It will be remembered that a frequent recurrence to funda¬ 
mental principles is solemnly enjoined by most of the State con¬ 
stitutions, and particularly bv our own, as a necessary safeguard 
against the danger of degeneracy to which republics are liable, 
as well as other Governments, though in a less degree than others. 
And a fair comparison of the political doctrines not unfrequent at 
the present day with those which characterized the epoch of our 
revolution and which form the basis of our republican constitutions 
will best determine whether the declaratory recurrence here made to 
those principles ought to be viewed as unseasonable and improper 
or as a vigilant discharge of an important duty. The authority of 
constitutions over governments and of the sovereignty of the people 
over constitutions are truths which are at all times necessary to be 
kept in mind, and at no time perhaps more necessary than at the 
present. 

The fourth resolution stands as follows: 

That the general assembly cloth also express its deep regret that a spirit has 
in sundry instances been manifested by the Federal Government to enlarge its 
powers by forced constructions of the constitutional charter which delines them, 
and that indications have appeared of a design to expound certain general 
phrases (which, having been copied from the very limited grant of powers in 
the former Articles of Confederation, were the less liable to be misconstrued) 
so as to destroy the meaning and effect of the particular enumeration which 
necessarily explains and limits the general phrases and so as to consolidate 
the States by degrees into one sovereignty, the obvious tendency and inevitable 
result of which would be to transform the present republican system of the 
United States into an absolute or at best a mixed monarchy. 

The first question here to be considered is, whether a spirit has in 
sundry instances been manifested by the Federal Government to en¬ 
large its powers by forced constructions of the constitutional charter. 

The general assembly having declared their opinion merely by re¬ 
gretting in general terms that forced constructions for enlarging the 
Federal powers have taken place, it does not appear to the committee 
necessary to go into a specification of every instance to which the 
resolution ma } 7 allude. The alien and sedition acts being particularly 
named in a succeeding resolution, are of course to be understood as 


ALIEN AND SEDITION LAWS. 


153 


included in the allusion. Omitting others which have less occupied 
public attention, or been less extensively regarded as unconstitutional, 
the resolution may be presumed to refer particularly to the bank law, 
which from the circumstances of its passage, as weli as the latitude of 
construction on which it is founded, strikes the attention with singu¬ 
lar force, and the carriage tax distinguished also by circumstances in 
its history having a similar tendency. Those instances alone, if re¬ 
sulting from forced construction and calculated to enlarge the powers 
of the Federal Government, as the committee can not but conceive to 
be the case, sufficiently warrant this part of the resolution. The com¬ 
mittee have not thought it incumbent on them to extend their atten¬ 
tion to laws which have been objected to. rather as varying the con¬ 
stitutional distribution of powers in the Federal Government than as 
an absolute enlargement of them, because instances of this sort, how¬ 
ever important in their principles and tendencies, do not appear to 
fall strictly within the text under review. 

The other questions presenting themselves are: 1. Whether indica¬ 
tions have appeared of a design to expound certain general phrases 
copied from the 44 Articles of Confederation ” so as to destroy the effect 
of the particular enumeration explaining and limiting their meaning. 
2. Whether this exposition would by degrees consolidate the States 
into one sovereignty. 3. Whether the tendency and result of this con¬ 
solidation would be to transform the republican system of the United 
States into a monarchy. 

1. The general phrases here meant must be those 44 of providing for 
the common defense and general welfare.” 

In the Articles of Confederation the phrases are used as follows 
in Article VIII: 

All charges of war and all other expenses that shall be incurred for the com¬ 
mon defense and general welfare and allowed by the United States in Congress 
assembled shall be defrayed ont of a common treasury, which shall be supplied 
by the several States in proportion to the value of all land within each State, 
granted to or surveyed for any person, as such land and the buildings and im¬ 
provements thereon shall be estimated, according to such mode as the United 
States in Congress assembled shall from time to time direct and appoint. 

In the existing Constitution they make the following part of sec¬ 
tion 8: 

The Congress shall have power to lay and collect taxes, duties, imposts, and 
excises to pay the debts and provide for the common defense and general wel¬ 
fare of the United States. 

This similarity in the use of these phrases in the two great Federal 
charters might well be considered as rendering their meaning less 
liable to be misconstrued in the latter, because it will scarcely be said 
that in the former they were ever understood to be either a general 
grant of power or to" authorize the requisition or application of 
money by the old Congress to the common defense and general wel¬ 
fare, except in the cases afterwards enumerated, which explained and 
limited their meaning; and if such was the limited meaning attached 
to these phrases in the very instrument revised and remodeled by the 
present Constitution, it can never be supposed that when copied into 
this Constitution a different meaning ought to be attached to them. 

That notwithstanding this remarkable security against miscon¬ 
struction, a design has been indicated to expound these phrases in the 
Constitution so as to destroy the effect of the particular enumeration 


154 


ALIEN AND SEDITION LAWS. 


of powers by w 7 hich it explains and limits them, must have fallen 
under the observation of those who have attended to the course of 
public transactions. Not to multiply proofs on this subject it will 
suffice to refer to the debates of the Federal Legislature in which 
arguments have on different occasions been drawn, with apparent 
effect, from these phrases, in their indefinite meaning. 

To these indications might be added, without looking further, the 
official report on manufactures by the late Secretary of the Treasury, 
made on the 5th of December, 1791; and the report of a committee 
of Congress, in January, 1797, on the promotion of agriculture. In 
the first of these it is expressly contended to belong— 

to the discretion of the National Legislature to pronounce upon the objects 
which concern the general welfare, and for which, under that description, an 
appropriation of money is requisite and proper. And there seems to be no 
room for a doubt that whatever concerns the general interests of learning, of 
agriculture, of manufactures, and of commerce are within the sphere of the 
national councils, as far as regards an application of money. 

The latter report assumes the same latitude of power in the na¬ 
tional councils and applies it to the encouragement of agriculture by 
means of a society to be established at the seat of government. 
Although neither of these reports may have received the sanction of 
a law carrying it into effect, yet, on the other hand, the extraordinary 
doctrine contained in both, has passed without the slightest positive 
mark of disapprobation from the authority to which it was addressed. 

Now, whether the phrases in question be construed to authorize 
every measure relating to the common defense and general welfare, 
as contended by some; or every measure only in which there might be 
an application of money, as suggested by the caution of others, the 
effect must substantially be the same in destroying the import and 
force of the particular enumeration of powers which follow these 
general phrases in the Constitution. For it is evident that there is 
not a single power whatever which may not have some reference to 
the common defense or the general welfare; nor a power of any 
magnitude which, in its exercise, does not involve or admit an appli¬ 
cation of money. The Government, therefore, which possesses power 
in either one or other of these extents is a Government without the 
limitations formed by a particular enumeration of powers; and con¬ 
sequently the meaning and effect of this particular enumeration is 
destroyed by the exposition given to these general phrases. 

This conclusion will not be affected by an attempt to qualify the 
power over the “ general welfare,” by referring it to cases where the 
general welfare is beyond the reach of separate provisions by the 
individual States; and leaving to these their jurisdictions in cases 
to which their separate provisions may be competent. For, as the 
authority of the individual States must in all cases be incompetent 
to general regulations operating through the whole, the authority of 
the United States would be extended to every object relating to the 
general welfare which might, by any possibility, be provided for by 
the general authority. This qualifying construction, therefore, would 
have little, if any, tendency to circumscribe the power claimed under 
the latitude of the terms “ general welfare.” 

The truth and fair construction of this expression, both in the 
original and existing Federal compacts, appears to the committee 
too obvious to be mistaken. In both the Congress is authorized to 


ALIEN AND SEDITION LAWS. 


155 


provide money for the common defense and general welfare. In both, 
is subjoined to this authority an enumeration of the cases to which 
their powers shall extend. Money can not be applied to the general 
welfare otherwise than by an application of it to some particular 
measure conducive to the general welfare. Whenever, therefore, 
money has been raised by the general authority and is to be applied 
to a particular measure a question arises whether the particular 
measure be within the enumerated authorities vested in Congress. 
If it be, the money requisite for it may be applied to it; if it be not, 
no such application can be made. This fair and obvious interpreta¬ 
tion coincides with and is enforced by the clause in the Constitution 
which declares that “no money shall be drawn from the Treasury, 
but in consequence of appropriations by law.” An appropriation of 
money to the general welfare would be deemed rather a mockery 
jthan an observance of this constitutional injunction. 

2. Whether the exposition of the general phrases here combatted 
would not, by degrees, consolidate the States into one sovereignty is 
a question concerning which the committee can perceive little room 
for difference of opinion. To consolidate the States into one sov¬ 
ereignty nothing more can be wanted than to supersede their re¬ 
spective sovereignties in the cases reserved to them by extending the 
sovereignty of the United States to all cases of the “ general welfare,” 
that is to say, to all cases whatever. 

3. That the obvious tendency and inevitable result of a consolida¬ 
tion of the States into one sovereignty would be to transform the 
republican system of the United States into a monarchy is a point 
which seems to have been sufficiently decided by the general sentiment 
of America. In almost every instance of discussion relating to the 
consolidation in question its certain tendency to pave the way to 
monarchy seems not to have been contested. The prospect of such 
a consolidation has formed the only topic of controversy. It would 
be unnecessary, therefore, for the committee to dwell long on the 
reasons which support the position of the general assembly. It may 
not be improper, however, to remark two consequences, evidently 
flowing from an extension of the Federal powers to every subject 
falling within the idea of the “ general welfare.” 

One consequence must be to enlarge the sphere of discretion allotted 
to the executive magistrate. Even within the legislative limits prop¬ 
erly defined by the Constitution, the difficulty of accommodating 
legal regulations to a country so great in extent and so various in its 
circumstances has been much felt and has led to occasional invest¬ 
ments of power in the Executive which involve perhaps as large a 
portion of discretion as can be deemed consistent with the nature of 
the Executive trust. In proportion as the objects of legislative care 
might be multiplied would the time allowed for each be diminished 
and the difficulty of providing uniform and particular regulations 
for all be increased. From these sources would necessarily ensue a 
greater latitude to the agency of that department which is always in 
existence and which could best mold regulations of a general nature 
so as to suit them to the diversity of particular situations. And it is 
in this latitude, as a supplement to the deficiency of the laws, that the 
degree of Executive prerogative materially consists. 

The other consequence would be that of an excessive augmentation 
of the offices, honors, and emoluments depending on the Executive 


156 


ALIEN AND SEDITION LAWS. 


will. Add to the present legitimate stock all those of every descrip¬ 
tion which a consolidation of the States would take from them and 
turn over to the Federal Government and the patronage of the 
Executive would necessarily be as much swelled in this case as its 
prerogative would be in the other. 

This disproportionate increase of prerogative and patronage must, 
evidently, either enable the Chief Magistrate of the Union, by quiet 
means, to secure his reelection from time to time, and finally to regu¬ 
late the succession as he might please; or, by giving so transcendent 
an importance to the office, would render the elections to it so violent 
and corrupt that the public voice itself might call for an hereditary 
in place of an elective succession. Whichever of these events might 
follow, the transformation of the republican system of the United 
States into a monarchy, anticipated by the general assembly from a 
consolidation of the States into one sovereignty, would be equally 
accomplished; and whether it would be into a mixed or an absolute 
monarchy might depend on too many contingencies to admit of any 
certain foresight. 

The resolution next in order is contained in the following terms: 

That the general assembly doth particularly protest against the palpable and 
alarming infractions of the Constitution in the two late cases of the “ alien and 
sedition acts,” passed at the last session of Congress, the first of which exer¬ 
cises a power nowhere delegated to the Federal Government and which, by 
uniting legislative and judicial powers to those of Executive, subverts the gen¬ 
eral principles of a free government, as well as the particular organization and 
positive provisions of the Federal Constitution: and the other of which acts 
exercises, in like manner, a power not delegated by the Constitution, but, on the 
contrary, expressly and positively forbidden by one of the amendments thereto; 
a power which, more than any other, ought to produce universal alarm, because 
it is leveled against that right of freely examining public characters and meas¬ 
ures, and of free communication among the people thereon, which has ever been 
justly deemed the only effectual guardian of every other right. 

The subject of this resolution having, it is presumed, more particu¬ 
larly led the general assembly into the proceedings which they com¬ 
municated to the other States, and being in itself of peculiar im¬ 
portance, it deserves the most critical and faithful investigation, for 
the length of which no other apology will be necessary. 

The subject divides itself into, first, the “alien act”; secondly, 
the “ sedition act.” 

Of the “ alien act,” it is affirmed by the resolution, first, that it 
exercises a power nowhere delegated to the Federal Government ; 
second, that it unites legislative and judicial powers to those of the 
Executive; third, that this union of power subverts the general prin¬ 
ciples of free government; fourth, that it subverts the particular 
organization and positive provisions of the Federal Constitution. 

In order to clear the way for a correct view of the first position 
several observations will be premised. 

In the first place, it is to be borne in mind, that it being a char¬ 
acteristic feature of the Federal Constitution, as it was originally 
ratified, and an amendment thereto having precisely declared, “ That 
the powers not delegated to the United States by the Constitution, 
Iior prohibited bv it to the States, are reserved to the States, respec¬ 
tively, or to the people”; it is incumbent in this, as in every other 
exercise of power by the Federal Government, to prove from the 
Constitution, that it grants the particular power exercised. 


ALIEN AND SEDITION LAWS. 


157 


The next observation to be made, is that much confusion and 
fallacy have been thrown into the question by blending the two cases 
of aliens, members of a hostile nation, and aliens, members of friendly 
nations. These two cases are so obviously and so essentially distinct 
that it occasions no little surprise that the distinction should have 
been disregarded; and the surprise is so much the greater, as it 
appears that the two cases are actually distinguished by two separate 
acts of Congress, passed at the same session, and comprised in the 
same publication; the one providing for the case of u alien enemies,** 
the other “ concerning aliens ” indiscriminately, and consequently 
extending to aliens of every nation in peace and amity with the 
United States. With respect to alien enemies, no doubt has been 
intimated as to the Federal authority over them; the Constitution 
having expressly delegated to Congress the power to declare war 
against any nation, and of course to treat it and all its members as 
enemies. With respect to aliens, who are not enemies but members 
of nations in peace and amity with the United States, the power 
assumed by the act of Congress is denied to be constitutional, and it 
is accordingly against this act that the protest of the general assembly 
is expressly and exclusively directed. 

A third observation is, that were it admitted, as is contended, 
that the “ act concerning aliens ” has for its object, not a penal but 
a preventive justice, it would still remain to be proved that it comes 
within the constitutional power of the Federal Legislature, and if 
within its power, that the legislature has exercised it in a constitu¬ 
tional manner. 

In the administration of preventive justice the following principles 
have been held sacred: That some probable ground of suspicion be 
exhibited before some judicial authority; that it be supported by oath 
or affirmation; that the party may avoid being thrown into confine¬ 
ment by finding pledges or sureties for his legal conduct sufficient in 
the judgment of some judicial authority; that he may have the benefit 
of a writ of habeas corpus and thus obtain his release, if wrongfully 
confined; and that he may at any time be discharged from his re¬ 
cognizance, or his confinement, and restored to his former liberty 
arid rights, on the order of the proper judicial authority 3 if it shall 
see sufficient cause. 

All these principles of the only preventive justice known to Ameri¬ 
can jurisprudence are violated by the alien act. The ground of 
suspicion is to be judged of, not by any judicial authority, but by 
the Executive Magistrate alone: no oath or affirmation is required; 
if the suspicion be held reasonable by the President, he may order 
the suspected alien to depart the territory of the United States, with¬ 
out the opportunity of avoiding the sentence, by finding pledges for 
his future good conduct; as the President may limit the time of 
departure as he pleases, the benefit of the writ of habeas corpus may 
be suspended with respect to the party, although the Constitution 
ordains that it shall not be suspended, unless when the public safety 
may require it in case of rebellion or invasion, neither of which 
existed at the passage of the act, and the party being under the sen¬ 
tence of the President, either removed from the United States, or 
being punished by imprisonment or disqualification, ever to become 
a citizen on conviction of not obeying the order of removal, he can 
not be discharged from the proceedings against him and restored to 


158 


ALIEN AND SEDITION LAWS. 


the benefits of his former situation, although the highest judicial 
authority should see the most sufficient cause for it. 

But, in the last place, it can never be admitted that the removal of 
aliens, authorized by the act, is to be considered, not as punishment 
for an offense, but as a measure of precaution and prevention. If 
the banishment of an alien from a country into which he has been 
invited, as the asylum most auspicious to his happiness; a country 
where he may have formed the most tender of connections, where he 
may have vested his entire property, and acquired property of the 
real and permanent, as well as the movable and temporary kind; 
where he enjoys, under the laws, a greater share of the blessings of 
personal security and personal liberty than he can elsewhere hope for, 
and where he may have nearly completed his probationary title to 
citizenship; if, moreover, in the execution of the sentence against 
him, he is to be exposed, not only to the ordinary dangers of the sea, 
but to the peculiar casualties incident to a crisis of war, and of un¬ 
usual licentiousness on that element, and possibly to vindictive pur¬ 
poses which his emigration itself may have provoked; if a banish¬ 
ment of this sort be not a punishment, and among the severest of 
punishments, it will be difficult to imagine a doom to which the name 
can be applied. And if it be a punishment it will remain to be in¬ 
quired whether it can be constitutional^ inflicted, on mere suspicion, 
by the single will of the Executive Magistrate, on persons convicted 
of no personal offense against the laws of the land, nor involved in 
any offense against the law of nations, charged on the foreign state 
of which they are members. 

One argument offered in justification of this power exercised over 
aliens is that the admission of them into the country being of favor, 
not of right, the favor is at all times revocable. 

To this argument it might be answered that, allowing the truth of 
the inference, it would be no proof of what is required. A question 
would still occur whether the Constitution had vested the discretion¬ 
ary power of admitting aliens in the Federal Government or in the 
State governments. 

But it can not be a true inference that because the admission of an 
alien is a favor the favor may be revoked at pleasure. A grant of 
land to an individual may be of favor, not of right; but the moment 
the grant is made the favor becomes a right and must be forfeited 
before it can be taken away. To pardon a malefactor may be a favor, 
but the pardon is not on that account the less irrevocable. To admit 
an alien to naturalization is as much a favor as to admit him to reside 
In the country, yet it can not be pretended that a person naturalized 
can be deprived of the benefit any more than a native citizen can be 
disfranchised. 

Again, it is said that aliens, not being parties to the Constitution, 
the rights and privileges which it secures can not be at all claimed 
by them. 

To this reasoning also it might be answered that although aliens 
are not parties to the Constitution it does not follow that the Consti¬ 
tution has vested in Congress an absolute power over them. The 
parties to the Constitution may have granted or retained or modified 
the power over aliens without regard to that particular consideration. 

But a more direct reply is that it does not follow because aliens 
are not parties to the Constitution, as citizens are parties to it, that 


ALIEN AND SEDITION LAWS. 


159 


whilst they actually conform to it they have no right to its protection. 
Aliens are not more parties to the laws than they are parties to the 
Constitution, yet it will not be disputed that as they owe on one hand 
a temporary obedience they are entitled in return to their protection 
and advantage. 

If aliens had no rights under the Constitution they might not only 
be banished but even capitally punished without a jury or the other 
incidents to a fair trial. But so far has a contrary principle been 
carried in every part of the United States that, except on charges of 
treason, an alien has, besides all the common privileges, the special 
one of being tried by a jury, of which one-half may be also aliens. 

It is said further that by the law and practice of nations aliens 
may be removed at discretion for offenses against the law of nations; 
that Congress are authorized to define and punish such offenses; and 
that to be dangerous to the peace of society is in aliens one of those 
offenses. 

The distinction between alien enemies and alien friends is a clear 
and conclusive answer to this argument. Alien enemies are under 
the law of nations and liable to be punished for offenses against it. 
Alien friends, except in the single case of public ministers, are under 
the municipal law and must be tried and punished according to that 
law only. 

This argument also, by referring the alien act to the power of 
Congress to define and punish offenses against the law of nations, 
yields the point that the act is of a penal, not merely of a preventive, 
operation. It must in truth be so considered. And if it be a penal 
act the punishment it inflicts must be justified by some offense that 
deserves it. 

Offenses for which aliens within the jurisdiction of a country are 
punishable are, first, offenses committed by the nation of which they 
make a part and in whose offenses they are involved; secondly, 
offenses committed by themselves alone, without any charge against 
the nation to which they belong. The first is the case of alien ene¬ 
mies, the second the case of alien friends. In the first case the offend¬ 
ing nation can not otherwise be punished than by war, one of the laws 
which authorizes the expulsion of such of its members as may be 
found within the country against which the offense has been commit¬ 
ted. In the second case, the offense being committed by the indi¬ 
vidual, not by his nation, and against the municipal law, not against 
the law of nations, the individual only and not the nation is punish¬ 
able, and the punishment must be conducted according to the munici¬ 
pal law T , not according to the law of nations. Under this view of the 
subject the act of Congress for the removal of alien enemies, being- 
conformable to the law of nations, is justified by the Constitution, 
and the “ act ” for the removal of alien friends, being repugnant to 
the constitutional principles of municipal law, is unjustifiable. 

Nor is the act of Congress for the removal of alien friends more 
agreeable to the general practice of nations that it is within the pur¬ 
view of the law of nations. The general practice of nations distin¬ 
guishes between alien friends and alien enemies. The latter it has 
proceeded against, according to the law of nations, by expelling them 
as enemies. The former it has considered as under a local and tem¬ 
porary allegiance and entitled to a correspondent protection. If 
contrary instances are to be found in barbarous countries, under 


160 


ALIEN AND SEDITION LAWS. 


undefined prerogatives or amid revolutionary dangers, they will not 
be deemed fit precedents for the Government of the United States, 
even if not beyond its constitutional authority. 

It is said that Congress may grant letters of marque and reprisal; 
that reprisals may be made on persons as well as property; and that 
the removal of aliens may be considered as the exercise in an inferior 
degree of the general power of reprisal on persons. 

Without entering minutely into a question that does not seem to 
require it, it may be remarked that reprisal is a seizure of foreign per¬ 
sons or property with a view to obtain that justice for injuries done 
by one State or its members to another State or its members, for 
which a refusal of the aggressor requires such a resort to force under 
the law of nations. It must be considered as an abuse of words to call 
the removal of persons from a country a seizure or reprisal on them; 
nor is the distinction to be overlooked between reprisals on persons 
within the country and under the faith of its laws and on persons out 
of the country. But, laying aside these considerations, it is evidently 
impossible „to bring the alien act within the power of granting re¬ 
prisals, since it does not allege or imply any injury received from any 
particular nation for which this proceeding against its members was 
intended as a reparation. The proceeding is authorized against aliens 
of every nation, of nations charged neither with any similar proceed¬ 
ing against American citizens, nor with any injuries for which justice 
might be sought in the mode prescribed by the act. Were it true, 
therefore, that good causes existed for reprisals against one or more 
foreign nations, and that neither the persons nor property of its mem¬ 
bers under the faith of our laws could plead an exemption, the opera¬ 
tion of the act ought to have been limited to the aliens among us 
belonging to such nations. To license reprisals against all nations 
for aggressions charged on one only would be a measure as contrary 
to every princijde of justice and public law as to a wise policy and 
the universal practice of nations. 

It is said that the right of removing aliens is an incident to the 
power of war vested in Congress by the Constitution. 

This is a former argument in a new shape only and is answered by 
repeating that the removal of alien enemies is an incident to the power 
of war; that the removal of alien friends is not an incident to the 
power of war. 

It is said that Congress are by the Constitution to protect each State 
against invasion, and that the means of preventing invasion are 
included in the power of protection against it. 

The power of war in general having been before granted by the 
Constitution, this clause must either be a mere specification for greater 
caution and certainty, of which there are other examples in the instru¬ 
ment, or be the injunction of a duty, superadded to a grant of the 
power. Under either explanation it can not enlarge the powers of 
Congress on the subject. The power and the duty to protect each 
State against an invading enemy would be the same under the general 
power if this regard to greater caution had been omitted. 

Invasion is an operation of war. To protect against invasion is an 
exercise of the power of war. A power therefore not incident to war 
can not be incident to a particular modification of war; and as the 
removal of alien friends has appeared to be no incident to a general 


ALIEN AND SEDITION LAWS. 


161 


state of war, it can not be incident to a partial state or a particular 
modification of war. 

Nor can it ever be granted that a power to act on a case when it 
actually occurs includes a power over all the means that may tend to 
prevent the occurrence of the case. Such a latitude of construction 
would render unavailing every practicable definition of particular and 
limited powers. Under the idea of preventing war in general, as well 
as invasion in particular, not only an indiscriminate removal of all 
aliens might be enforced, but a thousand other things still more remote 
from the operations and precautions appurtenant to war might take 
place. A bigoted or tyrannical nation might threaten us with war 
unless certain religious or political regulations were adopted by us, 
yet it never could be inferred, if the regulations which would prevent 
war were such as Congress had otherwise no power to make, that the 
power to make them would grow out of the purpose they were to 
answer. Congress have power to suppress insurrections, yet it would 
not be allowed to follow that they might employ all the means tend¬ 
ing to prevent them, of which a system of moral instruction for the 
ignorant and of provident support for the poor might be regarded as 
among the most efficacious. 

One argument for the power of the General Government to remove 
aliens would have been passed in silence if it had appeared under any 
authority inferior to that of a report made during the last session of 
Congress to the House of Representatives by a committee and ap¬ 
proved by the House. The doctrine on which this argument is 
founded is of so new and so extraordinary a character and strikes so 
radically at the political system of America that it is proper to state 
it in the very words of the report: 

The act [concerning aliens] is said to be unconstitutional, because to remove 
aliens is a direct breach of the Constitution, which provides by the ninth 
section of the first article: That the migration or importation of such persons 
as any of the States shall think proper to admit shall not be prohibited by the 
Congress prior to the year 1808. 

Among the answers given to this objection to the constitutionality 
of the act the following very remarkable one is extracted: 

Thirdly, that as the Constitution has given to the States no power to remove 
aliens during the period of the limitation under consideration, in the meantime, 
on the construction assumed, there would be no authority in the country em¬ 
powered to send away dangerous aliens, which can not be admitted. 

The reasoning here used would not in any view be conclusive, be¬ 
cause there are powers exercised by most other Governments which in 
the United States are withheld by the people, both from the General 
Government and from the State governments. Of this sort are many 
of the powers prohibited by the declarations of right prefixed to the 
constitutions, or by the clauses in the constitutions, in the nature of 
such declarations/ Nay, so far is the political system of the United 
States distinguishable from that of other countries, by the caution 
with which powers are delegated and defined, that in one very im¬ 
portant case, even of commercial regulation and revenue, the power 
is absolutely locked up against the hands of both governments. A 
tax on exports can be laid by no constitutional authority whatever. 
Under a system thus peculiarly guarded, there could surely be no ab¬ 
surdity in supposing that alien friends, who if guilty of treasonable 

52068—S. Doc. 873, 62-2-11 


162 


ALIEN AND SEDITION LAWS. 


machinations may be punished, or if suspected on probable grounds, 
may be secured by pledges or imprisonment in like manner with 
permanent citizens, were never meant to be subjected to banishment 
by any arbitrary and unusual process, either under the one Govern¬ 
ment or the other. 

But it is not the inconclusiveness of the general reasoning in this 
passage which chiefly calls the attention to it. It is the principle 
assumed by it that the powers held by the States are given to them 
by the Constitution of the United States, and the inference from this 
principle, that the powers supposed to be necessary which are not so 
given to the State governments, must reside in the Government of the 
United States. 

The respect which is felt for every portion of the constituted au¬ 
thorities forbids some of the reflections which this singular para¬ 
graph might excite; and they are the more readily suppressed, as it 
may be presumed, with justice perhaps, as well as candor, that inad¬ 
vertence may have had its share in the error. It would be an un¬ 
justifiable delicacy, nevertheless, to pass by so portentous a claim, 
proceeding from so high an authority, without a monitory notice of 
the fatal tendencies with which it would be pregnant. 

Lastly, it is said that a law on the same subject with the alien act, 
passed by this State originally in 1785, and reenacted in 1792, is a 
proof that a summary removal of suspected aliens was not hereto¬ 
fore regarded by the Virginia Legislature as liable to the objections 
now urged against such a measure. 

This charge against Virginia vanishes before the simple remark 
that the law of Virginia relates to “ suspicious persons being the sub¬ 
jects of any foreign power or State, who shall have made a declara¬ 
tion of war, or actually commenced hostilities, or from whom the 
President shall apprehend hostile designs ”; whereas the act of Con¬ 
gress relates to aliens, being the subjects of foreign powers and states 
who have neither declared war nor commenced hostilities, nor from 
whom hostile designs are apprehended. 

II. It is next affirmed of the alien act that it unites legislative, judi¬ 
cial, and executive powers in the hands of the President. 

However difficult it may be to mark in every case, with clearness 
and certainty, the line which divides legislative power from the other 
departments of power, all will agree that the powers referred to these 
departments may be so general and undefined as to be of a legislative, 
not of an executive or judicial nature, and may for that reason be un¬ 
constitutional. Details to a certain degree are essential to the nature 
and character of a law, and on criminal subjects it is proper that de¬ 
tails should leave as little as possible to the discretion of those who are 
to apply and to execute the law. If nothing more were required in 
exercising a legislative trust than a general conveyance of authority, 
without laying down any precise rules by which the authority con¬ 
veyed should be carried into effect, it would follow that the whole 
power of legislation might be transferred bv the legislature from 
itself, and proclamations might become substitutes for laws. A dele¬ 
gation of power in this latitude would not be denied to be a union of 
the different powers. 

To determine, then, whether the appropriate powers of the distinct 
departments are united by the act authorizing the Executive to re¬ 
move aliens, it must be inquired whether it contains such details. 


ALIEN AND SEDITION LAWS. 


163 


definitions, and rules as appertain to the true character of a law, espe- 
ciaily a law by which personal liberty is invaded, property deprived 
or its value to the owner, and life itself indirectly exposed to danger. 

The alien act declares “ that it shall be lawful for the President 
to order all such aliens as he shall judge dangerous to the peace and 
safety of the United States, or shall have reasonable ground to sus¬ 
pect are concerned in any treasonable or secret machinations against 
the Government thereof, to depart,” etc. 

Could a power be well given in terms less definite, less particular, 
and less precise? To be dangerous to the public safety; to be sus¬ 
pected of secret machinations against the Government—these can 
never be mistaken for legal rules or certain definitions. They leave 
everything to the President. His will is the law. 

But, it is not a legislative power only that is given to the President. 
He is to stand in the place of the judiciary also. His suspicion is the 
only evidence which is to convict; his order the only judgment which 
is to be executed. 

Thus, it is the President whose will is to designate the offensive 
conduct ; it is his will that is to ascertain the individuals on whom it 
is charged; and it is his will that is to cause the sentence to be exe¬ 
cuted. It is rightly affirmed, therefore, that the act unites legislative 
and judicial powers to those of the executive. 

III. It is affirmed that this union of power subverts the general 
principles of free government. 

It has become an axiom in the science of government that a sepa¬ 
ration of the legislative, executive, and judicial departments is neces¬ 
sary to the preservation of public liberty. Nowhere has this axiom 
been better understood in theory or more carefully pursued in prac¬ 
tice than in the United States. 

IV. It is affirmed that such a union of powers subverts the par¬ 
ticular organization and positive provisions of the Federal Con¬ 
stitution. 

According to the particular organization of the Constitution, its 
legislative powers are vested in the Congress, its executive powers in 
the President, and its judicial powers in a supreme and inferior 
tribunals. The union of any two of these powers, and still more of 
all three, in any one of these departments, as has been shown to be 
done by the alien act, must consequently subvert the constitutional 
organization of them. 

That positive provisions in the Constitution securing to individuals 
the benefits of fair trial are also violated by the union of powers in 
the alien act necessarily results from the two facts that the act relates 
to alien friends, and that alien friends, being under the municipal 
law only are entitled to its protection. 

The second object against which the resolution protests is the sedi¬ 
tion act. 

Of this act it is affirmed: (1) That it exercises m like manner a 
power not delegated by the Constitution. (2) That the power, on the 
contrary, is expressly and positively forbidden by one of the amend¬ 
ments to the Constitution. (3) That this is a power which more than 
any other ought to produce universal alarm, because it is leveled 
against that right of freely examining public characters and meas¬ 
ures, and of free communication thereon, which has ever been justly 
deemed the only effectual guardian of every other right. 


164 


ALIEN AND SEDITION LAWS. 


1. That it exercises a power not delegated by the Constitution. 

Here, again, it will be proper to recollect that the Federal Govern¬ 
ment being composed of powers specifically granted, with a reserva¬ 
tion of all others to the States or to the people, the positive authority 
under which the sedition act could be passed must be produced by 
those who assert its constitutionality. In what part of the Constitu¬ 
tion, then, is this authority to be found ? 

Several attempts have been made to answer this question, which 
will be examined in their order. The committee will begin with one 
which has filled them with equal astonishment and apprehension, and 
which they can not but persuade themselves must have the same effect 
on all who will consider it with coolness and impartiality, and with a 
reverence for our Constitution, in the true character in which it 
issued from the sovereign authority of the people. The committee 
refer to the doctrine lately advanced as a sanction to the sedition act, 
“ that the common or unwritten law,” a law of vast extent and com¬ 
plexity and embracing almost every possible subject of legislation, 
both civil and criminal, makes a part of the law of these States in 
their united and national capacity. 

The novelty and, in the judgment of the committee, the extrava¬ 
gance of this pretension would have consigned’ it to the silence in 
which they have passed by other arguments which an extraordi¬ 
nary zeal for the act has drawn into the discussion; but the auspices 
under which this innovation presents itself have constrained the com¬ 
mittee to bestow on it an attention which other considerations might 
have forbidden. 

In executing the task it may be of use to look back to the colonial 
state of this country prior to the Revolution to trace the effect of the 
Revolution, which converted the colonies into independent States; to 
inquire into the import of the Articles of Confederation, the first in¬ 
strument by which the union of the States was regularly established; 
and, finally, to consult the Constitution of 1788, which is the oracle 
that must decide the important question. 

In the State prior to the revolution it is certain that the common 
law under different limitations made a part of the colonial codes. 
But whether it be understood that the original colonists brought the 
law with them or made it their law by adoption, it is equally certain 
that it was the separate law of each colony within its respective 
limits, and was unknown to them as a law pervading and operating 
through the whole as one society. 

It could not possibly be otherwise. The common law was not the 
same in any two of the Colonies; in some the modifications were 
materially and extensively different. There was no common legisla* 
ture by which a common will could be expressed in the form of a 
law; nor any common magistracy by which such a law could be 
carried into practice. The will of each colony, alone and separately, 
had its organs for these purposes. 

This stage of our political history furnishes no foothold for the 
patrons of this new doctrine. 

Did then the principle or operation of the great event which made 
the Colonies independent States imply or introduce the common law 
as a law of the Union ? 

The fundamental principle of the revolution was that the Colonies 
were coordinate members with each other and with Great Britain 


ALIEN AND SEDITION LAWS. 


165 


of an empire, united by a common executive sovereign, but not united 
by any common legislative sovereign. The legislative power was 
maintained to be as complete in each American Parliament as in the 
British Parliament. And the royal prerogatives was in force in each 
colony, by virtue of its acknowledging the King for its executive 
magistrate, as it was in Great Britain, by virtue of a like acknowledg¬ 
ment there. A denial of these principles by Great Britain, and the 
assertion of them by America, produced the "revolution. 

There was a time indeed when an exception to the legislative sepa¬ 
ration of the several component and coequal parts of the Empire ob¬ 
tained a degree of acquiescence. The British Parliament was al¬ 
lowed to regulate the trade with foreign nations and between the 
different parts of the Empire. This was, however, mere practice 
without right, and contrary to the true theory of the Constitution. 
The convenience of some regulations, in both those cases, was ap¬ 
parent; and as there was no legislature with power over the whole, 
nor any constitutional preeminence among the legislatures of the 
several parts, it was natural for the legislature of that particular part 
which was the eldest and the largest to assume this function, and for 
the others to acquiesce in it. This tacit arrangement w T as the less 
criticized, as the regulations established by the British Parliament 
operated in favor of th^t part of the Empire which seemed to bear 
the principal share of the public burdens and were regarded as an 
indemnification of its advances for the other parts. As long as this 
regulating power was confined to the two objects of conveniency and 
equity it was not complained of nor much inquired into. But, no 
sooner was it perverted to the selfish views of the party assuming it 
than the injured parties began to feel and to reflect; and the moment 
the claim to a direct and indefinite power was ingrafted on the 
precedent of the regulating power the whole charm was dissolved 
and every eye opened to the usurpation. The assertion by Great 
Britain of a power to make laws for the other members of the Em¬ 
pire in all cases whatsoever ended in the discovery that she had a 
right to make laws for them in no cases whatsoever. 

Such being the ground of our revolution, no support nor color 
can be drawn from it, for the doctrine that the common law is bind¬ 
ing on these States as one society. The doctrine, on the contrary, is 
evidently repugnant to the fundamental principle of the revolution. 

The Articles of Confederation are the next source of information 
on this subject. 

In the interval between the commencement of the revolution and 
the final ratification of these articles the nature and extent of the 
Union w^as determined by the circumstances of the crisis rather than 
by any accurate delineation of the general authority. It will not be 
alleged that the “ common law ” could have had any legitimate birth 
as a law of the United States during that state of things. If it came 
as such into existence at all the charter of confederation must have 
been its parent. 

Here again, however, its pretensions are absolutely destitute of 
foundation. This instrument does not contain a sentence or syllable 
that can be tortured into a countenance of the idea that the parties 
to it w T ere, with respect to the objects of the common law. to form 
one community. No such law is named or implied, or alluded to, as 
being in force, or as brought into force by that compact. No pro- 


166 


ALIEN AND SEDITION LAWS. 


vision is made by which such a law could be carried into operation; 
whilst, on the other hand, every such inference or pretext is abso¬ 
lutely precluded by article 2, which declares: 

That each State retains its sovereignty, freedom, and independence, and every 
power, jurisdiction, and right, which is not by this confederation expressly 
delegated to the United States hi Congress assembled. 

Thus far it appears that not a vestige of this extraordinary doctrine 
can be found in the origin or progress of American institutions. The 
evidence against it has, on the contrary, grown stronger at every step 
till it has amounted to a formal and positive exclusion by written 
articles of compact among the parties concerned. 

Is this exclusion revoked, and the common law introduced as a na¬ 
tional law, by the present Constitution of the United States? This 
is the final question to be examined. 

It is readily admitted that particular parts of the common law may 
have a sanction from the Constitution, so far as they are necessarily 
comprehended in the technical phrases which express the powers dele¬ 
gated to the Government, and so far also as such other parts may be 
adopted by Congress as necessary and proper for carrying into execu¬ 
tion the powers expressly delegated. But the question does not relate 
to either of these portions of the common law. It relates to the com¬ 
mon law beyond these limitations. 

The only part of the Constitution which seems to have been relied 
on in this case is the second section of Article III: 

The judicial power shall extend to all cases in law and equity arising under 
this Constitution, the laws of the United States, and treaties made or which 
shall be ifiade under their authority. 

It has been asked what cases, distinct from those arising under the 
laws and treaties of the United States, can arise under the Constitu¬ 
tion, other than those arising under the common law; and it is in¬ 
ferred that the common law is accordingly adopted or recognized by 
the Constitution. 

Never, perhaps, was so broad a construction applied to a text so 
clearly unsusceptible of it. If any color for the inference could be 
found, it must be in the impossibility of finding any other cases in 
law and equity within the provision of the Constitution, to satisfy the 
expression; and rather than resort to a construction affecting so essen¬ 
tially the whole character of the Government, it would perhaps be 
more rational to consider the expression as a mere pleonasm or inad¬ 
vertence. But it is not necessary to decide on such a dilemma. The 
expression is fully satisfied and its accuracy justified by two descrip¬ 
tions of cases, to which the judicial authority is extended, and neither 
of which implies that the common law is the law of the United States. 
One of these descriptions comprehends the cases growing out of the 
restrictions on the legislative power of the States. For example, it 
is provided that “ no State shall emit bills of credit,” or “ make any 
thing but gold and silver coin a tender in payment of debts.” Should 
this prohibition be violated, and a suit between citizens of the same 
State be the consequence, this would be a case arising under the Con¬ 
stitution before the judicial power of the United States. A second 
description comprehends suits between citizens and foreigners, or citi¬ 
zens of different States, to be decided according to the State or for¬ 
eign laws, but submitted by the Constitution to the judicial power of 


ALIEN AND SEDITION LAWS. 


167 


the United States, the judicial power being, in several instances, ex¬ 
tended beyond the legislative power of the United States. 

1 o this explanation of the text the following observations mav be 
added: 

The expression “cases in law and equity” is manifestly confined 
to cases of a civil nature, and would exclude cases of criminal juris¬ 
diction. Criminal cases in law and equity would be a language un¬ 
known to the law. 

The succeeding paragraph of the same section is in harmony with 
this construction. It is in these words: “ In all cases affecting ambas¬ 
sadors, other public ministers, and consuls, and those in which a State 
shall be a party, the Supreme Court shall have original jurisdiction. 
In all the other cases (including cases in law and equity arising under 
the Constitution) the Supreme Court shall have appellate jurisdiction 
both as to law and fact, with such exceptions and under such regula¬ 
tions as Congress shall make.” 

This paragraph, by expressly giving an appellate jurisdiction in 
cases of law and equity arising under the Constitution to fact as 
well as to law, clearly excludes criminal cases where the trial by jury 
is secured, because the fact in such cases is not a subject of appeal. 
And although the appeal is liable to such exceptions and regulations 
as Congress may adopt, yet it is not to be supposed that an exception 
of all criminal cases could be contemplated as well because a discre¬ 
tion in Congress to make or omit the exception would be improper 
as because it would have been unnecessary. The exception could as 
easily have been made bj^ the Constitution itself as referred to the 
Congress. 

Once more; the amendment last added to the Constitution deserves 
attention as throwing light on this subject. “ The judicial power of 
the United States shall not be construed to extend to any suit in law 
or equity, commenced or prosecuted against one of the United States, 
by citizens of another State, or by citizens or subjects of any foreign 
power.” As it will not be pretended that any criminal proceeding 
could take place against a State, the terms law or equity must be un¬ 
derstood as appropriate to civil in exclusion of criminal cases. 

From these considerations it is e vident that this part of the Con¬ 
stitution, even if it could be applied at all to the purpose for which 
it has been cited, would not include any cases whatever of a criminal 
nature; and consequently would not authorize the inference from it 
that the judicial authority extends to offenses against the common 
law, as offenses arising under the Constitution. 

It is further to be considered that even if this part of the Con¬ 
stitution could be strained into an application to every common law 
case, criminal as well as civil, it could have no effect in justifying the 
sedition act, which is an exercise of legislative and not of judicial 
power; and it is the judicial power only of which the extent is de¬ 
fined in this part of the Constitution. 

There are two passages in the Constitution in which a description 
of the law of the United States is found. The first is contained in 
Article III, section 2, in the words following: 

This Constitution, the laws of the United States, and treaties made, or 
which shall be made, under their authority. 


168 


ALIEN AND SEDITION LAWS. 


The second is contained in the second paragraph of Article VI 
as follows: 

This Constitution and the laWs of the United States, which shall be made in 
pursuance thereof, and all treaties made, or which shall be made, under the 
authority of the United States, shall be the supreme law of the land. 

The first of these descriptions was meant as a guide to the judges 
of the United States; the second, as a guide to the judges in the 
several States. Both of them consist of an enumeration, which was 
evidently meant to be precise and complete. If the common law had 
been understood to be a law of the United States it is not possible to 
assign a satisfactory reason why it was not expressed in the enumera¬ 
tion. 

In aid of these objections, the difficulties and confusion inseparable 
from a constructive introduction of the common law would afford 
powerful reasons against it. 

Is it to be the common law with or without the British statutes? 

If without the statutory amendments, the vices of the code w T ould 
be insupportable. 

If with these amendments what period is to be fixed for limiting 
the British authority over our laws? 

Is it to be the date of the eldest or the youngest of the colonies? 

Or are the dates to be thrown together and a medium deduced? 

Or is our independence to be taken for the date? 

Is, again, regard to be had to the various changes in the common 
law made by the local codes of America? 

Is regard to be had to such changes subsequent, as well as prior, 
to the establishment of the Constitution? 

Is regard to be had to future as well as past changes? 

Is the law to be different in every State as differently modified 
by its code; or are the modifications of any particular State to be 
applied to all? 

And on the latter supposition, which among the State codes would 
form the standard ? 

Questions of this sort might be multiplied with as much ease as 
there would be difficulty in answering them. 

The consequences flowing from the proposed construction furnish 
other objections equally conclusive; unless the text were peremptory 
in its meaning and consistent with other parts of the instrument. 

These consequences may be in relation to the legislative authority 
of the United States; to the executive authority; to the judicial 
authority; and to the governments of the several States. 

If it be understood that the common law is established by the Con¬ 
stitution, it follows that no part of the law can be altered by the 
legislature; such of the statutes, already passed, as may be repugnant 
thereto would be nullified, particularly the “sedition act” itself, 
which boasts of being a melioration of the common law; and the 
whole code, with all its incongruities, barbarisms, and bloody maxims, 
would be inviolably saddled on the good people of the United States. 

Should this consequence be rejected and the common law be held, 
like other laws, liable to revision and alteration by the authority of 
Congress, it then follows that the authority of Congress is" co¬ 
extensive with the objects of common law; that is to say, with every 
object of legislation. For to every such object does some branch or 


ALIEN AND SEDITION LAWS. 


169 


other of the common law extend. The authority of Congress would, 
therefore, be no longer under the limitations marked out in the Con¬ 
stitution. They would be authorized to legislate in all cases whatso¬ 
ever. 

In the next place, as the President possesses the executive powers 
of the Constitution and is to see that the laws be faithfully executed, 
his authority also must be coextensive with every branch of the 
common law. The additions which this would make to his power, 
though not readily to be estimated, claim the most serious attention. 

This is not all; it will merit the most profound consideration, how 
far an indefinite admission of the common law, with a latitude in 
construing it, equal to the construction by which it is deduced from 
the Constitution, might draw after it the various prerogatives mak¬ 
ing part of the unwritten law of England. The English constitu¬ 
tion itself is nothing more than a composition of unwritten laws and 
maxims. 

In the third place, whether the common law be admitted as of 
legal or of constitutional obligation, it would confer on the judicial 
department a discretion little short of a legislative power. 

On the supposition of its having a constitutional obligation, this 
power in the judges would be permanent and irremediable by the 
legislature. On the other supposition, the power would not expire 
until the legislature should have introduced a full system of statutory 
provisions. Let it be observed, too^ that besides all the uncertainties 
above enumerated, and which present an immense field for judicial 
discretion, it would remain with the same department to decide what 
parts of the common law would, and what would not, be properly 
applicable to the circumstances of the United States. 

A discretion of this sort has always been lamented as incongruous 
and dangerous, even in the Colonial and State courts; although so 
much narrowed by positive provisions in the local codes on all the 
principal subjects embraced by the common law. Under the United 
States, where so few laws exist on those subjects, and Avhere so great 
a lapse of time must happen before the vast chasm could be supplied, 
it is manifest that the power of the judges over the law would, in 
fact, erect them into legislators; and, that for a long time, it would 
be impossible for the citizens to conjecture either what was or would 
be law. 

In the last place, the consequence of admitting the common law 
as the law of the United States^ on the authority of the individual 
States, is as obvious as it w'oulcl be fatal. -As this law relates to every 
subject of legislation and would be paramount to the constitutions 
and laws of the States; the admission of it would overwhelm the 
residuary sovereignty of the States, and by one constructive operation 
new-model the whole political fabric of the country. 

From the review thus taken of the situation of the American 
colonies prior to their independence; of the effect of this event on 
their situation; of the nature and import of the articles of confedera¬ 
tion; of the true meaning of the passage in the existing Constitution 
from which the common law has been deduced; of the difficulties 
and uncertainties incident to the doctrine; and of its vast conse¬ 
quences in extending the powers of the Federal Government, and in 
superseding the authorities of the State governments; the committee 
feel the utmost confidence in concluding that the common law never 


170 


ALIEN AND SEDITION LAWS. 


was, nor by any fair construction, ever can be, deemed a law for the 
American people as one community; and they indulge the strongest 
expectation that the same conclusion will finally be drawn by all can¬ 
did and accurate inquirers into the subject. It is indeed distressing 
to reflect that it ever should have been made a question, whether the 
Constitution, on the whole face of which is seen so much labor to 
enumerate and define the several objects of Federal power, could 
intend to introduce in the lump, in an indirect manner, and by a 
forced construction of a few phrases, the vast and multifarious juris¬ 
diction involved in the common law; a law filling so many ample 
volumes; a law overspreading the entire field of legislation; and a 
law that would sap the foundation of the Constitution as a system 
of limited and specified powers. A severer reproach could not in 
the opinion of the committee be thrown on the Constitution, on 
those who framed, or on those who established it, than such a suppo¬ 
sition would throw on them. 

The argument, then, drawn from the common law, on the ground 
of its being adopted or recognized by the Constitution, being inap¬ 
plicable to the sedition act, the committee will proceed to examine the 
other arguments which have been founded on the Constitution. 

They will waste but little time on the attempt to cover the act by 
the preamble to the Constitution; it being contrary to every acknowl¬ 
edged rule of construction to set up this part, of an instrument in 
opposition to the plain meaning expressed in the body of the instru¬ 
ment. A preamble usually contains the general motives or reasons 
for the particular regulations or measures which follow it; and is 
always understood to be explained and limited by them. In the 
present instance, a contrary interpretation would have the inadmis¬ 
sible effect of rendering nugatory or improper every part of the 
Constitution which succeeds the preamble. 

The paragraph in article 1, section 8, which contains the power to 
lay and collect taxes, duties, imposts, and exercises; to pay the debts 
and provide for the common defense and general welfare, having 
been already examined, will also require no particular attention in 
this place. It will have been seen that in its fair and consistent mean¬ 
ing it can not enlarge the enumerated powers vested in Congress. 

The part- of the Constitution which seems most to be recurred to, 
in defense of the “ sedition act,” is the last clause of the above section 
empowering Congress “ to make all laws which shall be necessary and 
proper for carrying into execution the foregoing powers, and all 
other powers vested by this Constitution in the Government of the 
United States, or in any department or officer thereof.” 

The plain import of this clause is that Congress shall have all the 
incidental or instrumental powers necessary and proper for carrying 
into execution all the express powers, whether they be vested in the 
Government of the United States more collectively or in the several 
departments or officers thereof. It is not a grant of new powers to 
Congress, but merely a declaration for the removal of all uncertainty 
that the means of carrying into execution those otherwise granted 
are included in the grant. 

Whenever, therefore, a question arises concerning the constitution¬ 
ality of a particular power the first question is whether the power be 
expressed in the Constitution. If it be, the question is decided. If 
it be not expressed, the next inquiry must be whether it is properly 


ALIEN AND SEDITION LAWS. 


171 


an incident to an express power and necessary to its execution. If it 
be, it may be exercised by Congress. If it be not, Congress can not 
exercise it. 

Let the question be asked, then, whether the power over the press 
exercised in the “ sedition act ” be found among the powers expressiy 
vested in the Congress. This is not pretended. 

Is there any express power for executing which it is a necessary and 
proper power? 

The power which has been selected as least remote in answer to this 
question is that of “ suppressing insurrections,” which is said to imply 
a power to prevent insurrections by punishing whatever may lead or 
tend to them. But it surely can not with the least plausibility be 
said that a regulation of the press and a punishment of libels are 
exercises of a power to suppress insurrections. The most that could 
be said would be that the punishment of libels, if it had the tendency 
ascribed to it, might prevent the occasion of passing or executing laws 
necessary and proper for the suppression of insurrections. 

Has the Federal Government no power, then, to prevent as well as 
to punish resistance to the laws? 

They have the power, which the Constitution deemed most proper, 
in their hands for the purpose. The Congress has power before it 
happens to pass laws for punishing it, and the Executive and 
judiciary have power to enforce those laws when it does happen. 

It must be recollected by man} 7 , and could be shewn to the satisfac¬ 
tion of all, that the construction here put on the terms “ necessary 
and proper ” is precisely the construction which prevailed during 
the discussions and ratifications of the Constitution. It may be 
added, and can not too often be repeated, that it is a construction 
absolutely necessary to maintain their consistency with the peculiar 
character of the Government as possessed of particular and defined 
powers only, not of the general and indefinite powers vested in 
ordinary Governments. For if the power to suppress insurrections 
includes a power to punish libels, or if the power to punish includes 
a power to prevent by all the means that may have that tendency, 
such is the relation and influence among the most remote subjects of 
legislations that a power over a very few would carry with it a power 
over all. And it must be wholly immaterial whether unlimited 
powers be exercised under the name of unlimited powers or be exer¬ 
cised under the name of unlimited means of carrying into execution 
limited powers. 

This branch of the subject will be closed with a reflection which 
must have weight with all, but more especially with those who place 
peculiar reliance on the judicial exposition of the Constitution as the 
bulwark provided against undue extensions of the legislative power. 
If it be understood that the powers implied in the specified powers 
have an immediate and appropriate relation to them as means neces¬ 
sary and proper for carrying them into execution, questions on the 
constitutionality of laws passed for this purpose will be of a nature 
sufficiently precise and determinate for judicial cognizance and con¬ 
trol. If, on the other hand, Congress are not limited in the choice of 
means by any such appropriate relation of them to the specified 
powers, but may employ all such means as they may deem fitted to 
prevent as well as to punish crimes subjected to their authority, such 
as may have a tendency only to promote an object for which they are 


172 


ALIEN AND SEDITION LAWS. 


authorized to provide, every one must perceive that questions relating 
to means of this sort must be questions of mere policy and expediency, 
on which legislative discretion alone can decide and from which the 
judicial interposition and control are completely excluded. 

2. The next point which the resolution requires to be proved is 
that the power over the press exercised by the sedition act is positively 
forbidden by one of the amendments to the Constitution. 

The amendment stands in these words: 

Congress shall make no law respecting an establishment of religion or pro¬ 
hibiting the free exercise thereof, or abridging the freedom of speech or of the 
press, or the right of the people peaceably to assemble and to petition tlm 
Government for a redress of grievances. 

In the attempts to vindicate the “ sedition act,” it has been con¬ 
tended: (1) That the “ freedom of the press ” is to be determined by 
the meaning of these terms in the common law. (2) That the article 
supposes the power over the press to be in Congress and prohibits 
them only from abridging the freedom allowed to it by the common 
law. 

Although it will be shown, in examining the second of these 
positions, that the amendment is a denial to Congress of all' power 
over the press, it may not be useless to make the following observa¬ 
tions on the first of them. 

It is deemed to be a sound opinion that the sedition act, in its 
definition of some of the crimes created, is an abridgment of the 
freedom of publication, recognized by principles of the common law 
in England. 

The freedom of the press under the common law is, in the defenses 
of the sedition act, made to consist in an exemption from all previous 
restraint on printed publications by persons authorized to inspect and 
prohibit them. It appears to the committee that this idea of the 
freedom of the press can never be admitted to be the American idea 
of it, since a law inflicting penalties on printed publications would 
have a similar effect with a law authorizing a previous restraint on 
them. It would seem a mockery to say that no law should be passed 
preventing publications from being made, but that laws might be 
passed for punishing them in case they should be made. 

The essential difference between the British Government and the 
American constitutions will place this subject in the clearest light. 

In the British Government the danger of encroachments on the 
rights of the people is understood to be confined to the executive 
magistrate. The representatives of the people in the legislature are 
not only exempt themselves from distrust, but are considered as suffi¬ 
cient guardians of the rights of their constituents against the danger 
from the executive. Hence it is a principle that the Parliament is 
unlimited in its power, or, in their own language, is’omnipotent. 
Hence, too, all the ramparts for protecting the rights of the people, 
such as their Magna Charta, their Bill of Bights, etc., are not reared 
against the Parliament, but against the royal prerogative. They are 
merely legislative precautions against executive usurpations. Under 
such a Government as this an exemption of the press from previous 
restraint by licensers appointed by the King is all the freedom that 
can be secured to it. 

In the United States the case is altogether different. The people, 
not the Government, possess the absolute sovereignty. The legisla- 


ALIEN AND SEDITION LAWS. 


173 


ture, no less than the executive, is under limitations of power. En¬ 
croachments are regarded as possible from the one as well as from the , 
other. Hence in the United States the great and essential rights of 
the people are secured against legislative as well as against executive 
ambition. They are secured, not by laws paramount to prerogative, 
but by constitutions paramount to laws. This security of the free¬ 
dom of the press requires that it should be exempt not only from 
previous restraint by the executive, as in Great Britain, but from 
legislative restraint also; and this exemption, to be effectual, must be 
an exemption not only from the previous inspection of licensers, but 
from the subsequent penalty of laws. 

The state of the press, therefore, under the common law can not 
in this point of view be the standard of its freedom in the United 
States. 

But there is another view under which it may be necessary to 
consider this subject. It may be alleged that although the security 
for the freedom of the press be different in Great Britain and in this 
country, being a legal security only in the former and a constitutional 
security in the latter; and although there may be a further difference, 
in an extension of the freedom of the press here, beyond an exemp¬ 
tion from previous restraint, to an exemption from subsequent pen¬ 
alties also, yet that the actual legal freedom of the press, under the 
common law, must determine the degree of freedom which is meant 
by the terms and which is constitutionally secured against both 
previous and subsequent restraints. 

The committee are not unaware of the difficulty of all general 
questions which may turn on the proper boundary between the liberty 
and licentiousness of the press. They will leave it, therefore, for 
consideration only, how far the difference between the nature of the 
British Government and the nature of the American governments and 
the practice under the latter may show the degree of rigor in the 
former to be inapplicable to and not obligatory in the latter. 

The nature of governments elective, limited, and responsible in all 
their branches may well be supposed to require a greater freedom of 
animadversion than might be tolerated by the genius of such a Gov¬ 
ernment as that of Great Britain. In the latter it is a maxim that 
the King, an hereditary, not a responsible magistrate, can do no 
wrong, and that the legislature, which in two-thirds of its compo¬ 
sition is also hereditary, not responsible, can do what it pleases. In 
the United States the executive magistrates are not held to be infal¬ 
lible nor the legislatures to be omnipotent, and both being elective 
are both responsible. Is it not natural and necessary, under such 
different circumstances, that a different degree of freedom in the 
use of the press should be contemplated ? 

Is not such an inference favored by what is observable in Great 
Britain itself? Notwithstanding the general doctrine of the common 
law on the subject of the press and the occasional punishment of those 
who use it with a freedom offensive to the Government, it is well 
known that with respect to the responsible members of the Govern¬ 
ment, where the reasons operating here become applicable there, the 
freedom exercised by the press and protected by the public opinion 
far exceeds the limits prescribed by the ordinary rules of law. The 
ministry, who are responsible to impeachment, are at all times ani¬ 
madverted on by the press with peculiar freedom, and during the 


174 


ALIEN AND SEDITION LAWS. 


ejections for the House of Commons, the other responsible part of the 
Government, the press is employed with as little reserve toward the 
candidates. 

The practice in America must be entitled to much more respect. 
In every State, probably, in the Union the press has exerted a free¬ 
dom in canvassing the merits and measures of public men of every 
description which has not been confined to the strict limits of the com¬ 
mon law. On this footing the freedom of the press has stood; on 
this footing it yet stands. And it will not be a breach either of truth 
or of candor to say that no persons or presses are in the habit of more 
unrestrained animadversions on the proceedings and functionaries of 
the State governments than the persons and presses most zealous in 
vindicating the act of Congress for punishing similar animadversions 
on the Government of the United States. 

The last remark will not be understood as claiming for the State 
governments an immunity greater than they have heretofore enjoyed. 
Some degree of abuse is inseparable from the proper use of every¬ 
thing, and in no instance is this more true than in that of the press. 
I< has accordingly been decided by the practice of the States that it 
is better to leave a few of its noxious branches to their luxuriant 
growth than by pruning them away to injure the vigor of those yield¬ 
ing the proper fruits. And can the wisdom of this policy be doubted 
by any who reflect that to the press alone, checkered as it is with 
abuses, the world is indebted for all the triumphs which have been 
gained by reason and humanity over error and oppression; who reflect 
that to the same beneficent source the United States owe much of the 
lights which conducted them to the rank of a free and independent 
Nation and which have improved their political system into a shape 
so auspicious to their happiness? Had “sedition acts” forbidding 
every publication that might bring the constituted agents into con¬ 
tempt or disrepute, or that might excite the hatred of the people 
against the authors of unjust or pernicious measures, been uniformly 
enforced against the press, might not the United States have been 
languishing at this day under the infirmities of a sickly confedera¬ 
tion ? Might they not possibly be miserable colonies groaning under 
a foreign yoke? 

To those observations one fact will be added which demonstrates 
that the common law can not be admitted as the universal expositor 
of American terms which may be the same with those contained in 
that law. The freedom of conscience and of religion are found in 
the same instruments which assert the freedom of the press. It will 
i’ever be admitted that the meaning of the former in the common law 
of England is to limit their meaning in the United States. 

Whatever weight may be allowed to these considerations, the com¬ 
mittee do not, however, by any means intend to rest the question on 
them. They contend that the article of amendment, instead of sup¬ 
posing in Congress a power that might be exercised over the press, 
provided its freedom was not abridged, was meant as a positive denial 
to Congress of any power whatever on the subject. 

To demonstrate that this was the true object of the article, it will 
be sufficient to recall the circumstances which led to it and to refer to 
the explanation accompanying the article. 

When the Constitution was under the discussions which preceded 
its ratification it is well known that great apprehensions were ex- 


ALIEN AND SEDITION LAWS. 


175 


pressed by many lest the omission of some positive exception from 
the powers delegated of certain rights, and of the freedom of the 
press particularly, might expose them to the danger of being drawn 
by construction within some of the powers vested in Congress, more 
especially of the power to make all laws necessary and proper for 
carrying their other powers into execution. In reply to this objec¬ 
tion it was invariably urged to be a fundamental and characteristic 
principle of the Constitution that all powers not given by it were 
reserved; that no powers were given beyond those enumerated in the 
Constitution and such as were fairly incident to them; that the power 
over the rights in question, and particularly over the press, was 
neither among the enumerated powers nor incident to any of them, 
and consequently that an exercise of any such power would be a 
manifest usurpation. It is painful to remark how much the argu¬ 
ments now employed in behalf of the sedition act are at variance with 
the reasoning which then justified the Constitution and invited its 
ratification. 

From this posture of the subject resulted the interesting question 
in so many of the conventions whether the doubts and dangers 
ascribed to the Constitution should be removed by any amendments 
previous to the ratification or be postponed, in confidence that as far 
as they might be proper they would be introduced in the form pro¬ 
vided by the Constitution. The latter course was adopted, and in 
most of the States the ratifications were followed by propositions 
and instructions for rendering the Constitution more explicit and 
more safe to the rights not meant to be delegated by it. Among those 
rights the freedom of the press in most instances is particularly and 
emphatically mentioned. The firm and very pointed manner in 
which it is asserted in the proceedings of the convention of this 
State will be hereafter seen. 

In pursuance of the wishes thus expressed, the first Congress that 
assembled under the Constitution proposed certain amendments which 
have since, by the necessary ratifications, been made a part of it; 
among which amendments is the article containing, among other pro¬ 
hibitions on the Congress, an express declaration that they should 
make no law abridging the freedom of the press. 

Without tracingfurther the evidence on this subject, it would seem 
scarcely possible to doubt that no power whatever over the press was 
supposed to be delegated by the Constitution, as it originally stood; 
and that the amendment was intended as a positive and absolute 
reservation of it. 

But the evidence is still stronger. The proposition of amendments 
made by Congress is introduced in the following terms: 

The conventions of a number of the States having at the time of their 
adopting the Constitution expressed a desire, iu order to prevent misconstruc¬ 
tions or abuse of its powers, that further declaratory and restrictive clauses 
should be added, and as extending the ground of public confidence in the Govern¬ 
ment will best insure the beneficient ends of its institutions. 

Here is the most satisfactory and authentic proof that the several 
amendments proposed were to be considered as either declaratory or 
restrictive, and whether the one or the other as corresponding with 
the desire expressed by a number of the States, and as extending the 
ground of public confidence in the Government. 

Under any other construction of the amendment relating to the 
press than that it declared the press to be wholly exempt from the 


176 


ALIEN AND SEDITION LAWS. 


power of Congress, the amendment could neither be said to corre¬ 
spond with the desire expressed by a number of the States, nor be cal¬ 
culated to extend the ground of public confidence in the Government. 

Nay, more, the construction employed to justify the “ sedition 
act ” would exhibit a phenomenon without a parallel in the political 
world. It would exhibit a number of respectable States, as denying 
first that any power over the press was delegated by the Constitution; 
as proposing next that an amendment to it should explicitly declare 
that no such power was delegated; and, finally, as concurring in an 
amendment actually recognizing or4ftelegating such a power. 

Is then the Federal Government, it will be asked, destitute of every 
authority for restraining the licentiousness of the press, and for 
shielding itself against the libelous attacks which may be made on 
those who administer it? 

The Constitution alone can answer this question. If no such power 
be expressly delegated, and it be not both necessary and proper to 
carry into execution an express power; above all, if it be expressly 
forbidden by a declaratory amendment to the Constitution, the 
answer must be that the Federal Government is destitute of all such 
authority. 

And might it not be asked in turn, whether it is not more probable, 
under all the circumstances which have been reviewed, that the au¬ 
thority should be withheld by the Constitution than that it should be 
left to a vague and violent construction, whilst so much pains were 
bestowed in enumerating other powers, and so many less important 
powers are included in the enumeration? 

Might it not be likewise asked whether the anxious circumspection 
which dictated so many peculiar limitations on the general authority 
would be unlikely to exempt the press altogether from that authority ? 
The peculiar magnitude of some of the powers necessarily committed 
to the Federal Government; the peculiar duration required for the 
functions of some of its departments; the peculiar distance of the seat 
of its proceedings from the great body of its constituents; and the 
peculiar difficulty of circulating an adequate knowledge of them 
through any other channel; will not these considerations, some or 
other of which produced other exceptions from the pow T ers of ordi¬ 
nary governments, all together, account for the policy of binding the 
hand of the Federal Government from touching the channel which 
alone can give efficacy to its responsibility to its constituents; md of 
leaving those who administer it to a remedy for their injurev repu¬ 
tations, under the same laws and in the same tribunals which prot r „ 
their lives, their liberties, and their properties? 

But the question does not turn either on the wisdom of the Corn u - 
tution on or the policy which gave rise to its particular organization. 
It turns on the actual meaning of the instrument, by which it has ap¬ 
peared that a power over the press is clearly excluded from the num¬ 
ber of powers delegated to the Federal Government. 

3. And in the opinion of the committee well may it be said, as the 
resolution concludes with saying, that the unconstitutional power 
exercised over the press by the “ sedition act,” ought 

more than any other, to produce universal alarm; because it is leveled against 
that right of freely examining public characters and measures, and of free 
communication among the people thereon, which has ever been justly deemed 
the only effectual guardian of every other right. 


ALIEN AND SEDITION LAWS. 


177 


Without scrutinizing minutely into all the provisions of the 

sedition act,” it will be sufficient to cite so much of section 2, as 
follows: 

And be it further enacted, That if any person shall write, print, utter, or 
publish, or shall cause or procure to be written, printed, uttered, or published, 
or shall knowingly and willingly assist or aid in writing, printing, uttering, 
or publishing any false, scandalous, and malicious writing or writings against 
the Government of the United States, or either House of the Congress of the 
United States, or the President of the United States, with an intent to defame 
the said Government, or either House of the said Congress, or the President, 
or to bring them, or either of them, into contempt or disrepute; or to excite 
against them, or either, or any of them, the hatred of the good people of the 
United States, etc. Then such person being thereof convicted before any court 
of the United States, having jurisdiction thereof, shall be punished by a fine 
not exceeding two thousand dollars, and by imprisonment not exceeding two 
years. 

On this part of the act the following observations present them¬ 
selves : 

1. The Constitution supposes that the President, the Congress, and 
each of its Houses may not discharge their trusts either from defect 
of judgment or other causes. Hence, they are all made responsible 
to their constituents at the returning periods of election; and the 
President, who is singly intrusted with very great powers, is, as a 
further guard, subjected to an intermediate impeachment. 

2. Should it happen, as the Constitution supposes it may happen, 
that either of these branches of the Government may not have duly 
discharged its trust, it is natural and proper that, according to the 
cause and degree of their faults, they should be brought into con¬ 
tempt or disrepute and incur the hatred of the people. 

3. Whether it has, in any case, happened that the proceedings of 
either or all of those branches evinces such a violation of duty as to 
justify a contempt, a disrepute, or hatred among the people can only 
be determined by a free examination thereof and a free communica¬ 
tion among the people thereon. 

4. Whenever it may have actually happened that proceedings of 
this sort are chargeable on all or either of the branches of the Gov¬ 
ernment it is the duty, as well as right, of intelligent and faithful 
citizens to discuss and promulge them freely, as well to control them 
by the censorship of the public opinion as to promote a remedy, ac¬ 
cording to the rules of the Constitution. And it can not be avoided 
thdtThose who are to apply the remedy must feel in some degree a 
bohtefhpt or hatred against the transgressing party. 

As the act was passed on July 14,1798, and is to be in force until 
M^rch 3, 1801, it was, of course, that during its continuance two elec¬ 
tions of the entire House of Representatives, an election of a part of 
the Senate, and an election of a President were to take place. 

6. That consequently during all these elections, intended by the 
Constitution to preserve the purity or to purge the faults of the ad¬ 
ministration, the great remedial rights of the people were to be exer¬ 
cised and the responsibility of their public agents to be screened under 
the penalties of this act. 

May it not be asked of every intelligent friend to the liberties of 
his country whether the power exercised in such an act as this ought 
not to produce great and universal alarm; whether a rigid execution 
of such an act in time past would not have repressed that information 

52068—S. Doc. 873, 62-2-12 


178 


ALIEN AND SEDITION LAWS. 


and communication among the people which is indispensable to the 
just exercise of their electoral rights; and whether such an act, if 
made perpetual and enforced with rigor, would not in time to come 
either destroy our free system of government or prepare a convulsion 
that might prove equally fatal to it? 

In answer to such questions it has been pleaded that the writings 
and publications forbidden by the act are those only which are false 
and malicious and intended to defame; and merit is claimed for the 
privilege allowed to authors to justify by proving the truth of their 
publications and for the limitations to which the sentence of fine and 
imprisonment is subjected. 

To those who concurred in the act under the extraordinary belief 
that the option lay between the passing of such an act and leaving in 
force the common law of libels, which punishes truth equally with 
falsehood and submits the fine and imprisonment to the indefinite 
discretion of the court, the merit of good intentions ought surely not 
to be refused. A like merit may perhaps be due for the discontinu¬ 
ance of the corporal punishment, which the common law also leaves 
to the discretion of the court. This merit of intention, however, 
would have been greater if the several mitigations had not been lim¬ 
ited to so short a period, and the apparent inconsistency would have 
been avoided between justifying the act at one time by contrasting it 
with the rigors of the common law, otherwise in force, and at another 
time by appealing to the nature of the crisis as requiring the tempo¬ 
rary rigor exerted by the act. 

But whatever may have been the meritorious intentions of all or 
any who contributed to the sedition act, a very few deflections will 
prove that its baneful tendency is little diminished by the privilege 
of giving in evidence the truth of the matter contained in political 
writings. 

In the first place, where simple and naked facts alone are in ques¬ 
tion there is sufficient difficulty in some cases and sufficient trouble 
and vexation in all of meeting a prosecution from the Government 
with the full and formal proof necessary in a court of law. 

But, in the next place, it must be obvious to the plainest minds 
that opinions and inferences and conjectural observations are not 
only in many cases inseparable from the facts, but may often be 
more the objects of the prosecution than the facts themselves; or 
may even be altogether abstracted from particular facts; and that 
opinions and inferences and conjectural observations can not be sub¬ 
jects of that kind of proof which appertains to facts before a court 
of law. 

Again, it is no less obvious that the intent to defame or bring into 
contempt or disrepute or hatred which is made a condition of the 
offense created by the act can not prevent its pernicious influence on 
the freedom of the press. For, omitting the inquiry, how far the 
malice of the intent is an inference of the law from the mere publi¬ 
cation, it is manifestly impossible to punish the intent to bring those 
who administer the government into disrepute or contempt without 
striking at the right of freely discussing public characters and 
measures, because those who engage in such discussions must expect 
and intend to excite these unfavorable sentiments so far as they may 
be thought to be deserved. To prohibit, therefore, the intent to ex¬ 
cite those unfavorable sentiments against those who administer the 


ALIEN AND SEDITION LAWS. 


179 


government is equivalent to a prohibition of the actual excitement of 
them; and to prohibit the actual excitement of them is equivalent to 
a prohibition of discussions having that tendency and effect; which, 
again, is equivalent to a protection of those who administer the gov¬ 
ernment if they should at any time deserve the contempt or hatred 
of the people against being exposed to it by free animadversions on 
their characters and conduct. Nor can there be a doubt, if those in 
public trust be shielded by penal laws from such strictures of the 
press as may expose them to contempt or disrepute or hatred where 
they may deserve it, that in exact, proportion as they may deserve 
to be exposed will be the certainty and criminality of the intent to 
expose them and the vigilance of prosecuting and punishing it; nor 
a doubt that a government thus intrenched in penal statutes against 
the just and natural effects of a culpable administration will easily 
evade the responsibility which is essential to a faithful discharge 
of its duty.. 

Let it be recollected, lastly, that the right of electing the members 
of the government constitutes more particularly the essence of a 
free and responsible government. The value and efficacy of this 
right depends on the knowledge of the comparative merits and de¬ 
merits of the candidates for public trust, and on the equal freedom, 
consequently, of examining and discussing these merits and demerits 
of the candidates, respectively. It has been seen that a number of 
important elections will take place whilst the act is in force, although 
it should not be continued beyond the term to which it is limited. 
Should there happen, then, as is extremely probable in relation to 
some or other of the branches of the government, to be competitions 
between those who are and those who are not members of the gov¬ 
ernment, what will be the situations of the competitors? Not equal, 
because the characters of the former will be covered by the “ sedition 
act” from animadversions exposing them to disrepute among the 
people, whilst the latter may be exposed to the contempt and hatred 
of the people without a violation of the act. What will be the situa¬ 
tion of the people? Not free, because they will be compelled to 
make their election between competitors whose pretensions they are 
not permitted by the act equally to examine, to discuss, and to ascer¬ 
tain. And from both these situations will not those in power derive 
an undue advantage for continuing themselves in it, which, by im¬ 
pairing the right of election, endangers the blessings of the govern¬ 
ment founded -on it ? 

It is with justice, therefore, that the general assembly have affirmed 
in the resolution as well that the right of freely. examining public 
characters and measures and of free communication thereon is the 
only effectual guardian of every other right as that this particular 
right is leveled at by the power exercised in the “ sedition act.” 

The resolution next in order is as follows: 

That this State having by its convention which ratified the Federal Consti¬ 
tution expressly declared that, among other essential rights, “ the liberty of 
conscience and of the press can not be canceled, abridged, restrained, or modi¬ 
fied by any authority of the United States,” and from its extreme anxiety to 
guard these rights from every possible attack of sophistry and ambition, having 
with other States recommended an amendment for that purpose, which amend¬ 
ment was in due time annexed to the Constitution, it would mark a reproachful 
inconsistency and criminal degeneracy if an indifference were now shown to the 
most palpable violation of one of the rights thus declared and secured and to the 
establishment of a precedent which may be fatal to the other. 


180 


ALIEN AND SEDITION LAWS. 


To place this resolution in its just light it will be necessan^ to recur 
to the act of ratification by Virginia, which stands in the ensuing 
form: 

We, the delegates of the people of Virginia, duly elected in pursuance of a 
recommendation from the general assembly, and now met in convention, having 
fully and freely investigated and discussed the proceedings of the Federal con¬ 
vention, and being prepared as well as the most mature deliberation hath en- 
enabled us to decide thereon, do in the name and in behalf of the people of 
Virginia, declare and make known that the powers granted under the Consti¬ 
tution being derived from the people of the United States may be resumed by 
them whensoever the same shall be perverted to their injury or oppression; 
and that every power not granted thereby remains with them and at their will. 
That therefore no right of any denomination can be canceled, abridged, re¬ 
strained, or modified by the Congress, by the Senate, or House of JEtepresent- 
atives acting in any capacity, by the President, or any department or officer 
of the United States except in those instances in which power is given by the 
Constitution for those purposes; and that, among other essential rights, the 
liberty of conscience and of the press can not be canceled, abridged, restrained, 
or modified by any authority of the United States. 

Here is an express and solemn declaration by the convention of the 
State, that they ratified the Constitution in the sense that no right 
of any denomination can be canceled, abridged, restrained, or modi¬ 
fied by the Government of the United States, or any part of it, except 
in those instances in which power is given by the Constitution and 
in the sense particularly “ that, among other essential rights, the 
liberty of conscience and freedom of the press can not be canceled, 
abridged, restrained, or modified by any authority of the United 
States.” 

Words could not well express in a fuller or more forcible manner 
the understanding of the convention that the liberty of conscience 
and the freedom of the press were equally and completely exempted 
from all authority whatever of the United States. 

Under an anxiety to guard more effectually these rights against 
every possible danger the convention, after ratifying the Constitu¬ 
tion, proceeded to prefix to certain amendments proposed by them a 
declaration of rights in which are two articles providing, the one for 
the liberty of conscience, the other for the freedom of speech and 
of the press. 

Similar recommendations having proceeded from a number of 
other States, and Congress, as has been seen, having in consequence 
thereof and with a view to extend the ground of public confidence 
proposed, among other declaratory and restrictive clauses, a clause 
expressly securing the liberty of conscience and of the press, and Vir¬ 
ginia having concurred in the ratifications which made them a part 
of the Constitution, it will remain with a candid public to decide 
whether it would not mark an inconsistency and degeneracy if an 
indifference were now shown to a palpable violation of one of those 
rights—the freedom of the press—and to a precedent therein which 
may be fatal to the other—the free exercise of religion. 

That the precedent established by the violation of the former of 
these rights may, as is affirmed by the resolution, be fatal to the latter 
appears to be demonstrable by a comparison of the grounds on which 
they respectively rest and from the scope of reasoning by which the 
power over the former has been vindicated. 

First. Both of these rights, the liberty of conscience and of the 
press, rest equally on the original ground of not being delegated by 


ALIEN AND SEDITION LAWS. 


181 


the Constitution and consequently withheld from the Government. 
Any construction, therefore, that would attack this original security 
for the one must have the like effect on the other. 

Second. They are both equally secured by the supplement to the 
Constitution, being both included in the same amendment, made at 
the same time,, and by the same authority. Any construction or argu¬ 
ment, then, which would turn the amendment into a grant or ac¬ 
knowledgment of power with respect to the press might be equally 
applied to the freedom of religion. 

Third. If it be admitted that the extent of the freedom of the 
press secured by the amendment is to be measured by the common law 
on this subject, the same authority may be resorted to for the stand¬ 
ard which is to fix the extent of the “ free exercise of religion.” It 
can not be necessary to say what this standard would be, whether 
the common law be taken solely as the unwritten or as varied by the 
written law of England. 

Fourthly. If the words and phrases in the amendment are to be 
considered as chosen with a studied discrimination, which yields an 
argument for a power over the press under the limitation that its 
freedom be not abridged, the same argument results from the same 
consideration for a power over the exercise of religion under the 
limitation that its freedom be not prohibited. 

For. if Congress may regulate the freedom of the press provided 
they do not abridge it, because it is said only “ they shall not abridge 
it,” and is not said “ they shall make no law respecting it,” the anal¬ 
ogy of reasoning is conclusive that Congress may regulate and even 
abridge the free exercise of religion, provided they do not prohibit 
it, because it is said only “ they shall not prohibit it,” and is not said 
“ they shall make no law respecting or no law abridging it.” 

The general assembly were governed by the clearest reason, then, 
in considering the “ sedition act,” which legislates on the freedom of 
the press, as establishing a precedent that may be fatal to the liberty 
of conscience; and it will be the duty of all, in proportion as they 
value the security of the latter, to take the alarm at every encroach¬ 
ment on the former. 

The two concluding resolutions only remain to be examined. They 
are in the words following: 

That the good people of this Commonwealth, having ever felt and continuing 
to feel the most sincere affection for their brethren of the other States, the 
truest anxiety for establishing and perpetuating the Union of all, and the most 
scrupulous fidelity to that Constitution, which is the pledge of mutual friendship 
and the instrument of mutual happiness, the general assembly doth solemnly 
appeal to the like dispositions in the other States, in confidence that they will 
concur with this Commonwealth in declaring, as it does hereby declare, that the 
acts aforesaid are unconstitutional, and that the necessary and proper measures 
will be taken by each for cooperating with this State in maintaining unimpaired 
the authorities, rights, and liberties reserved in the States, respectively, or to 
the people. 

That the governor be desired to transmit a copy of the foregoing resolutions 
to the executive authority of each of the other States, with a request that the 
same may be communicated to the legislature thereof, and that a copy be fur¬ 
nished to" each of the Senators and Representatives representing this State in 
the Congress of the United States. 

The fairness and regularity of the course of proceeding here pur¬ 
sued have not protected it against objections even from sources too 
respectable to be disregarded. 


182 


ALIEN AND SEDITION LAWS. 


It has been said that it belongs to the judiciary of the United States, 
and not the State legislatures, to declare the meaning of the Federal 
Constitution. 

But a declaration that proceedings of the Federal Government are 
not warranted by the Constitution is a novelty neither among the 
citizens nor among the legislatures of the States, nor are the citizens 
or the Legislature of Virginia singular in the example of it. 

Nor can the declarations of either, whether affirming or denying 
the constitutionality of measures of the Federal Government, or • 
whether made before or after judicial decisions thereon, be deemed 
in any point of view an assumption of the office of the judge. The 
declarations in such cases are expressions of opinion, unaccompanied 
with any other effect than what they may produce on opinion by 
exciting reflection. The expositions of the judiciary, on the other 
hand, are carried into immediate effect by force. The former may 
lead to a change in the legislative expression of the general will, pos¬ 
sibly to a change in the opinion of the judiciary; the latter enforces 
the general will whilst that will and that opinion continue unchanged. 

And if there be no impropriety in declaring the unconstitutionality 
of proceedings in the Federal Government, where can be the impro¬ 
priety of communicating the declaration to other States and inviting 
their concurrence in a like declaration? What is allowable for one 
must be allowed for all; and a free communication ^iong the States, 
where the Constitution imposes no restraint, is as allowable among the 
State governments as among other public bodies or private citizens. 
This consideration derives a weight that can not be denied to it from 
the relation of the State legislatures to the Federal Legislature, as 
the immediate constituents of one of its branches. 

The legislatures of the States have a right also to originate amend¬ 
ments to the Constitution by a concurrence of two-thirds of the whole 
number in applications to Congress for the purpose. When new 
States are to be formed by a junction of two or more States or parts 
of States the legislatures of the States concerned are, as well as Con¬ 
gress, to concur in the measure. The States have a right also to enter 
into agreements or compacts, with the consent of Congress. In all 
such cases a communication among them results from the object which 
is common to them. 

It is lastly to be seen whether the confidence expressed by the 
resolution that the necessary and proper measures would be "taken 
by the other States for cooperating with Virginia in maintaining 
the rights reserved to the States or to the people be in any degree 
liable to the objections which have been raised against it. 

If it be liable to objection it must be because either the object or the 
means are objectionable. 

The object being to maintain what the Constitution has ordained 
is in itself a laudable object. 

The means are expressed in the terms “ the necessary and proper 
measures.” A proper object was to be pursued by means both neces¬ 
sary and proper. 

To find an objection, then, it must be shown that some meaning 
was annexed to these general terms which was not proper, and, for 
this purpose, either that the means used by the general assembly 
were an example of improper means or that there were no proper 
means to which the terms could refer. 


ALIEN AND SEDITION LAWS. 


183 


In the example given by the State of declaring the alien and sedi¬ 
tion acts to be unconstitutional, and of communicating the declara¬ 
tion to the other States, no trace of improper means has appeared. 
And if the other States had concurred in making a like declaration, 
supported, too, by the numerous applications flowing immediately 
from the people, it can scarcely be doubted that these simple means 
would have been as sufficient as they are unexceptionable. 

It is no less certain that other means might have been employed 
which are strictly within the limits of the Constitution. The legis¬ 
latures of the States might have made a direct representation to 
Congress, with a view to obtain a rescinding of the two offensive 
acts, or they might have represented to their respective Senators in 
Congress their wish that two-thirds thereof would propose an ex¬ 
planatory amendment to the Constitution; or two-thirds of them¬ 
selves, if such had been their option, might, by an application to 
Congress, have obtained a convention for the same object. 

These several means, though not equally eligible in themselves, 
nor probably to the States, were all constitutionally open for consid¬ 
eration. And if the general assembly, after declaring the two acts 
to be unconstitutional, the first and most obvious proceeding on the 
subject, did not undertake to point out to the other States a choice 
among the further measures that might become necessary and proper, 
the reserve will not be misconstrued by liberal minds into any culpa¬ 
ble imputation. 

These observations appear to form a satisfactory reply to every 
objection which is not founded on a misconception of the terms em¬ 
ployed in the resolutions. There is one other, however, which may 
be of too much importance not to be added. It can not be forgotten 
that among the arguments addressed to those who apprehended 
danger to liberty from the establishment of the General Government 
over so great a country, the appeal was emphatically made to the 
intermediate existence of the State governments, between the people 
and that Government, to the vigilance with which they would descry 
the first symptoms of usurpation, and to the promptitude with which 
they would sound the alarm to the public. This argument was 
probably not without its effect, and if it was a proper one then to 
recommend the establishment of the Constitution, it must be a proper 
one now to assist in its interpretation. 

The only part of the two concluding resolutions that remains to 
be noticed is the repetition in the first of that warm affection to the 
Union and its members, and of that scrupulous fidelity to the Consti¬ 
tution which have been invariably felt by the. people of this State. 
As the proceedings were introduced with these sentiments they 
could not be more properly closed than in the same manner. Should 
there be any so far misled as to call in question the sincerity of these 
professions, whatever regret may be excited by the error, the general 
assembly can not descend into a discussion of it. Those who have 
listened to the suggestion can only be left to their own recollection 
of the part which this State has borne in the establishment of our 
national independence, in the establishment of our National Consti¬ 
tution, and in maintaining under it the authority and laws of the 
Union without a single exception of internal resistance or commo¬ 
tion. By recurring to these facts, they will be able to convince them¬ 
selves that the representatives of the people of Virginia must be 


184 


ALIEN AND SEDITION LAWS. 


above the necessity of opposing any other shield to attacks on their 
national patriotism than their own consciousness and the justice of 
an enlightened public, who will perceive in the resolutions themselves 
the strongest evidence of attachment, both to the Constitution and 
to the Union, since it is only by maintaining the different Govern¬ 
ments and departments within their respective limits that the bless¬ 
ings of either can be perpetuated. 

The extensive view of the subject thus taken by the committee has 
led them to report to the house, as the result of the whole, the fol¬ 
lowing resolution: 

Resolved, That the general assembly, having carefully and respectfully at¬ 
tended to the proceedings of a number of the States, in answer to their resolu¬ 
tions of December 21, 1798, and having accurately and fully reexamined and 
reconsidered the latter, find it to be their indispensable duty to adhere to the 
same, as founded in truth, as consonant with the Constitution, and as con¬ 
ducive to its preservation; and more especially to be their duty to renew, as 
they do hereby renew, their protest against “ the alien and sedition acts,” as 
palpable and alarming infractions of the Constitution. 

KENTUCKY LEGISLATURE. 

In the House of Representatives, 

November 10,1798. 

The house, according to the standing order of the day, resolved 
itself into a committee of the whole on the state of the Common¬ 
wealth, Mr. Caldwell in the chair, 

And after some time spent therein the speaker resumed the chair, 
and Mr. Caldwell reported that the committee had, according to 
order, had under consideration the governor’s address and had come 
to the following resolutions thereupon, which he delivered in at the 
clerk’s table, where they were twice read and agreed to by the house: 

1. Resolved, That the several States composing the United States of America 
are not united on the principle of unlimited submission to their General Gov¬ 
ernment, but that by compact under the style and title of a Constitution for the 
United States, and of amendments thereto, they constituted a General Govern¬ 
ment for special purposes, delegated to that Government certain definite powers, 
reserving each State to itself the residuary mass of right to their own self- 
government, and that whensoever the General Government assumes undelegated 
powers its acts are unauthoritative, void, and of no force; that to this compact 
each State acceded as a State and is an integral party, its co-States forming 
as to itself the other party; that the Government created by this compact was 
not made the exclusive or final judge of the extent of the powers delegated 
to itself, since that would have made its discretion and not the Constitution 
the measure of its powers, but that, as in all other cases of compact among 
parties having no common judge, each party has an equal right to judge for 
itself, as well of infractions as of the mode and measure of redress. 

2. Resolved, That the Constitution of the United States having delegated 
to Congress a power to punish treason, counterfeiting the securities and current 
coin of the United States, piracies and felonies committed on the high seas, 
and offenses against the laws of nations, and no other crimes whatever, and 
it being true as a general principle, and one of the amendments to the Con¬ 
stitution having also declared, “ that the powers not delegated to the United 
States by the Constitution, nor prohibited by it to the States, are reserved to 
the States, respectively, or to the people ”; therefore also the same act of Con¬ 
gress passed on the 14th day of July, 1798, and entitled ‘‘An act in addition to 
the act entitled ‘An act for the punishment of certain crimes against the 
United States,’ ” as also the act passed by them on the 27th day of June, 1798, 
entitled “An act to punish frauds committed on the Bank of the United States ” 
(and all other their acts which assume to create, define, or punish crimes other 
than those enumerated in the Constitution), are altogether void and of no 
force, and that the power to create, define, and punish such other crimes is 


ALIEN AND SEDITION LAWS. 


185 


reserved and of right appertains solely and exclusively to the respective States, 
each within its own territory. 

3. Resolved , That it is true as a general principle, and is also expressly de¬ 
clared by one of the amendments to the Constitution, that “ the powers not 
delegated to the United States by the Constitution, nor prohibited by it to the 
States, are reserved to the States, respectively, or to the people ”; and that 
no power over the freedom of religion, freedom of speech, or freedom of the 
press being delegated to the United States by the Constitution nor prohibited 
by it to the States, all lawful powers respecting the same did of right remain 
and were reserved to the States or to the people; that thus was manifested their 
determination to retain to themselves the right of judging how far the licen¬ 
tiousness of speech and of the press may be abridged without lessening their 
useful freedom and how far those abuses which can not be separated from their 
use should be tolerated rather than the use be destroyed; and thus also they 
guarded against all abridgment by the United States of the freedom of religious 
opinions and exercises and retained to themselves the right of protecting the 
same, as this State, by a law passed on the general demand of its citizens, had 
already protected them from all human restraint or interference; and that 
in addition to this general principle and express declaration another and more 
special provision has been made by one of the amendments to the Constitution, 
which expressly declares that “ Congress shall make no law respecting an 
establishment of religion or prohibiting the free exercise thereof or abridging 
the freedom of speech or of the press,” thereby guarding in the same sentence 
and under the same words the freedom of religion, of speech, and of the press, 
insomuch that whatever violates either throws down the sanctuary which 
covers the others, and that libels, falsehoods, and defamation equally with heresy 
and false religion are withheld from the cognizance of Federal tribunals; that 
therefore the act of the Congress of the United States passed on the 14th day 
of July, 1798, entitled “An act in addition to the act for the punishment of 
certain crimes against the United States,” which does abridge the freedom of 
the press, is not law, but is altogether void and of no effect. 

4. Resolved, That alien friends are under the jurisdiction and protection of 
the laws of the State wherein they are; that no power over them has been dele¬ 
gated to the United States nor prohibited to the individual States distinct 
from their power over citizens; and it being true as a general principle, and one 
of the amendments to the Constitution having also declared, that “ the powers 
not delegated to the United States by the Constitution, nor prohibited by it to 
the States, are reserved to the States respectively or to the people,” the act of 
the Congress of the United States, passed on the 22d day of June, 1798, entitled 
“An act concerning aliens.” which assumes power over alien friends not dele¬ 
gated by the Constitution, is not law, but is altogether void and of no force. 

5. Resolved, That in addition to the general principle as well as the express 
declaration that powers not delegated are reserved, another and more special 
provision inserted in the Constitution from abundant caution has declared 
“ that the migration or importation of such persons as any of the States now 
existing shall think proper to admit shall not be prohibited by the Congress 
prior to the year 1808;” that this Commonwealth does admit the migration 
of alien friends described as the subject of the said act concerning aliens; that 
a provision against prohibiting their migration is a provision against all acts 
equivalent thereto or it would be nugatory; that to remove them when migrated 
is equivalent to a prohibition of their migration, and is therefore contrary to 
the said provision of the Constitution and void. 

6. Resolved, That the imprisonment of a person under the protection of the 
laws of this Commonwealth on his failure to obey the simple order of the Presi¬ 
dent to depart out of the Unted States, as is undertaken by the said act, en¬ 
titled “An act concerning aliens,” is contrary to the Constitution, one amend¬ 
ment to which has provided that “ no person shall be deprived of liberty with¬ 
out due process of law,” and that another having provided “ that in all crimi¬ 
nal prosecutions the accused shall enjoy the right to a public trial by an impar¬ 
tial jury, to be informed of the nature and cause of the accusation, to be 
confronted with the witnesses against him, to have compulsory process for 
obtaining witnesses in his favor, and to have the assistance of counsel for his 
defense,” the same act undertaking to authorize the President to remove a 
person out of the United States who is under the protection of the law, on his 
own suspicion, without accusation, without jury, without public trial, without 
confrontation of the witnesses against him, without having witnesses in his 


186 


ALIEN AND SEDITION LAWS. 


favor, without defense, without counsel, is contrary to these provisions also 
of the Constitution, is therefore not law, but utterly void and of no force. 

That transferring the power of judging any person who is under the protec¬ 
tion of the laws from the courts to the President of the United States, as is 
undertaken by the same act concerning aliens, is against the article of the 
Constitution which provides that “ the judicial power of the United States 
shall be vested in courts, the judges of which shall hold their offices during 
good behavior,” and that the said act is void for that reason also; and it is 
further to be noted that this transfer of judiciary power is to that magistrate 
of the General Government w r ho already possesses all the executive and a 
qualified negative in all the legislative powers. 

7. Resolved; That the construction applied by the General Government (as is 
evinced by sundry of their proceedings) to those parts of the Constitution of 
the United States which delegates to Congress a power to lay and collect taxes, 
duties, imposts, and excises; to pay the debts and provide for the common 
defense and general welfare of the United States, and to make all laws which 
shall be necessary and proper for carrying into execution the powers vested by 
the Constitution in the Government of the United States, or any department 
thereof, goes to the destruction of all the limits prescribed to their power by 
the Constitution—that words meant by that instrument to be subsidiary only 
to the execution of the limited powers ought not to be so construed as them¬ 
selves to give unlimited powers, nor a part so to be taken, as to destroy the 
whole residue of the instrument; that the proceedings of the General Govern¬ 
ment under color of these articles will be a fit and necessary subject for revisal 
and correction at a time of greater tranquillity, while those specified in the pre¬ 
ceding resolutions call for immediate redress. 

8. Resolved , That the preceding resolutions be transmitted to the Senators 
and Representatives in Congress from this Commonwealth, who are hereby 
enjoined to present the same to their respective Houses and to use their best 
endeavors to procure at the next session of Congress a repeal of the aforesaid 
unconstitutional and obnoxious acts. 

9. Resolved, lastly, That the governor of this Commonwealth be, and is 
hereby, authorized and requested to communicate the preceding resolutions to 
the legislatures of the several States; to assure them that this Commonwealth 
considers Union for specified national purposes, and particularly for those 
specified in their late Federal compact to be friendly to the peace, happiness, 
and prosperity of all the States; that faithful to that compact, according to 
the plain intent and meaning in which it was understood and acceded to by 
the several parties, it is sincerely anxious for its preservation; that it does 
also believe that to take from the States all the powers of self-government 
and transfer them to a general and consolidated government, without regard 
to the special delegations and reservations solemnly agreed to in that com¬ 
pact, is not for the peace, happiness, or prosperity of these States; and that 
therefore this Commonwealth is determined, as it doubts not its co-States are, 
tamely to submit to undelegated and consequently unlimited powers in no 
man or body of men on earth; that if the acts before specified should stand, 
these conclusions would flow from them: that the General Government may 
place any act they think proper oh the list of crimes and punish it themselves, 
whether enumerated or not enumerated by the Constitution as cognizable by 
them; that they may transfer its cognizance to the President or any other 
person, who may himself be the accuser, counsel, judge, and jury, whose sus¬ 
picions may be the evidence, his order the sentence, his officer the executioner, 
and his breast the sole record of the transaction; that a very numerous and 
valuable description of the inhabitants of these States, being by this precedent 
reduced as outlaws to the absolute dominion of one man and the barrier of 
the Constitution thus swept away from us all, no rampart now remains against 
the passions and the power of a majority of Congress to protect from a like 
exportation or other more grievous punishment the minority of the same body, 
the legislatures, judges, governors, and counselors of the States, nor their 
other peaceable inhabitants who may venture to reclaim the constitutional 
rights and liberties of the States and people, or who for other causes, good 
or bad, may be obnoxious to the views or marked by the suspicions of the 
President, or be thought dangerous to his or their elections or other interests, 
public or personal; that the friendless alien has indeed been selected as the 
safest subject of a first experiment, but the citizen will soon follow, or rather 
has already followed, for already has a sedition act marked him as its prey; 
that these and successive acts of the same character, unless arrested on the 


ALIEN AND SEDITION LAWS. 


187 


threshold, may tend to drive these States into revolution and blood, and will 
furnish new calumnies against republican governments and new pretexts for 
those who wish it to be believed that man can not be governed but by a rod 
of iron; that it would be a dangerous delusion were a confidence in the men of 
our choice to silence our fears for the safety of our rights; that confidence 
is everywhere the parent of despotism—free government is founded in jealousy 
and not in confidence—it is jeaolusy and not confidence which prescribes 
limited constitutions to bind down those whom we are obliged to trust with 
power; that our Constitution has accordingly fixed the limits to which and no 
further our confidence may go; and let the honest advocate of confidence read 
the alien and sedition acts and say if the Constitution has not been wise in 
fixing limits to the Government it created and whether we should be wise in 
destroying those limits? Let him say what the Government is if it be not a 
tyranny, which the men of our choice have conferred on the President, and 
the President of our choice has assented to and accepted over the friendly 
strangers to whom the mild spirit of our country and its laws had pledged 
hospitality and protection; that the men of our choice have more respected 
the bare suspicions of the President than the solid rights of innocence, the 
claims of justification, the sacred force of truth, and the forms and substance 
of law and justice. In questions of power, then, let no more be heard of 
confidence in man, but bind him down from mischief by the chains of the 
Constitution. That this Commonwealth does therefore call on its co-States 
for an expression of their sentiments on the acts concerning aliens and for 
the punishment of certain crimes hereinbefore specified, plainly declaring 
whether these acts are or are not authorized by the Federal compact. And it 
doubts not that their sense will be so announced as to prove their attachment 
unaltered to limited government, whether general or particular, and that the 
rights and liberties of their co-States will be exposed to no dangers by remain¬ 
ing embarked on a common bottom with their own. That they will concur 
with this Commonwealth in considering the said acts as so palpably against 
the Constitution as to amount to an undisguised declaration that the compact 
is not meant to be the measure of the powers of the general Government, but 
that it will proceed in the exercise over these States of all powers whatsoever; 
that they will view this as seizing the rights of the States and consolidating 
them in the hands of the General Government with a power assumed to bind 
the States, not merely in cases made Federal, but in all cases whatsoever, by 
laws made, not with their consent, but by others against their consent; that 
this would be to surrender the form of government we have chosen and to 
live under one deriving its powers from its own will and not from our au¬ 
thority; and that the co-States, recurring to their natural right in cases not 
made Federal, will concur in declaring these acts void and of no force, and 
will each unite with this Commonwealth in requesting their repeal at the next 
session of Congress. 

Edmund Bullock, S. H. R. 

John Campbell, 8. S. P. T. 


Passed the house of representatives November 10, 1798. 

Attest i 

Thomas Todd, G. H. R. 


In senate, November 13, 1798, unanimously concurred in. 


Attest : 


Approved, November 16, 1798. 
By the Governor: 


B. Thruston, Glk. Sen. 
James Garrard, G. K. 
Harry Toulmin, Secretary of State. 



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